With Malice Towards One: The "Heightened" Pleading of Constitutional Torts Against Federal Officials

Abstract

This article previews the issues and arguments in Siegert v. Gilley, on the Supreme Court’s 1990-91 appellate docket. The main issue in Siegert is whether a "heightened pleading" requirement applies when a former government employee alleges that a federal officer acted maliciously in supplying a detrimental employment reference, and the federal officer invokes a qualified immunity from suit. Related to this question is whether such a heightened pleading requirement precludes the ability of the person bringing suit to conduct discovery relating to the alleged malice before the court dismisses the case on the federal officer's summary judgment motion. The third issue in Siegert is whether the federal officer is entitled to a qualified immunity in supplying the employment reference.

The problem of properly pleading a claim in federal court has generated much interest in recent years. One of the major reforms of the 1938 Federal Rules of Civil Procedure was a new, liberalized system of "notice" pleading. The chief purpose of notice pleading was to eliminate the complexities of common-law pleading according to "forms of action," a system that required lawyers to delineate elements of a legal claim and the facts supporting each element. The arcane intricacies of common-law pleading often proved to be a "trap for the unwary" pleader, who might suffer dismissal for technical mistakes. Notice pleading, instead, merely required that a person set forth "a short and plain statement of the claim" showing that the claimant was entitled to relief.

Notwithstanding this reform, federal courts in recent years have become increasingly stringent about what needs to be set forth in a complaint to prevent either the complaint from being dismissed for failure to state a claim, or the lawyer sanctioned for improper pleading. This notion of "heightened pleading" requirements has now permeated certain types of federal cases, most notably civil rights actions. Siegert v. Gilley examines the problem of heightened pleading requirements in the context of constitutional torts against federal officials, so-called Bivens actions.

Siegert v. Gilley represents the intersection of three highly technical and complicated areas of law: pleading requirements in federal cases, the sovereign immunity of government officials from laws, and the burden of persuasion and proof on summary judgment motions. The Supreme Court has spoken many times on these subjects separately, but Siegert will require the Court to weave an intricate web to fashion a whole cloth from these various doctrinal threads. How the Court resolves these knotty questions will probably be closely watched by federal officials who are called upon to supply job performance references for employees under their supervision.