Thurgood Marshall

“ Finally, there remains the primary question on which we granted certiorari: whether in a Bivens action in which malice has been alleged and where qualified immunity has been raised as a defense, a "heightened pleading" standard must be met in order to allow limited discovery prior to disposition on a summary judgment motion. Under my understanding of Paul, I do not believe Siegert would have to prove malice in order to establish a constitutional violation. ”

“ The complaint states that Bartel was denied a specific job because of the [stigmatizing ] letter . . . . The crux of the complaint, as we read it, is that Bartel was not considered for FAA employment on a basis equal with others of equivalent skill and experience—i.e., that he was wrongfully denied the 'right to be considered for government [employment] in common with all other persons.' For an individual whose entire career revolved around aviation, this denial may have effectively abridged his freedom to take advantage of public employment. ”

“ Lovett, 328 U.S. 303 , 66 S.Ct. 1073, 90 L.Ed. 1252 (1946) , where congressional action stigmatized three Government employees and " 'prohibit [ed] their ever holding a government job' ") .
It is also clear that Gilley should have known that his alleged conduct deprived Siegert of a liberty interest. If our case law left any doubt that reputational injury deprives a person of liberty when it causes loss of future government employment, that doubt was dispelled by the decisions of the Court of Appeals for the District of Columbia Circuit, the jurisdiction where Gilley worked. ”

“ Fitzgerald, 457 U.S., at 817-818, 102 S.Ct., at 2738. Yet it also has recognized that in some instances limited discovery "tailored specifically to the question of . . . qualified immunity" may be necessary. ”

“ In a Bivens claim for damages, whether a federal official can be qualifiedly immune from suit without regard to whether the challenged conduct was discretionary in nature?" Pet. for Cert. i.
According to this Court's Rule 14.1 (a) : " [O] nly the questions set forth in the petition [for writ of certiorari] , or fairly included therein, will be considered by the Court." In my view, neither of the questions set forth in the petition is broad enough to subsume the issue that the majority contends is presented in this case. ”