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SIEGERT v. GILLEY

June 30, 1988

FREDERICK A. SIEGERT, Plaintiff,
v.
H. MELVYN GILLEY, Defendant



The opinion of the court was delivered by: SPORKIN

 STANLEY SPORKIN, UNITED STATES DISTRICT JUDGE.

 This case involves a claim by a clinical psychologist who was formerly employed at Saint Elizabeth's Hospital and is now working as a librarian in Germany. Plaintiff claims that defendant deprived him of his due process rights and he has brought this action pursuant to the Fifth Amendment of the Constitution and the Bivens doctrine. He has also invoked the pendent jurisdiction of this court for his common law claims of defamation, intentional infliction of emotional distress and interference with contractual relations.

 Plaintiff filed this lawsuit on November 25, 1986, slightly less than a year after he discovered allegedly defamatory communications between defendant and officials at his new place of employment, had caused him to lose his new job. The theory of plaintiff's constitutional claim is that defendant's publication of defamatory remarks led not only to severe harm to his reputation but also caused an infringement of his "liberty interests" in violation of the protections provided by the due process clause of the Fifth Amendment to the United States Constitution. Plaintiff seeks damages under the principles first expounded in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971).

 Defendant made a motion to dismiss the action, or in the alternative, for summary judgment, on several grounds, including the contention that even accepting his factual allegations, plaintiff had failed to show an infringement of any right protected by the Constitution. Defendant also asserted that the doctrines of qualified immunity and absolute immunity protect him against liability for any of plaintiff's claims. After hearing oral argument, I determined that because plaintiff had not obtained any discovery, the record was insufficiently developed to permit either dismissal or summary judgment. I found that a sharply circumscribed amount of discovery was warranted. Accordingly, I ordered the parties to take the testimony of the two principal actors in this affair -- plaintiff, Dr. Siegert, and defendant, Dr. Gilley.

 This case is now before me on defendant's Motion for Reconsideration and for a Stay of Discovery Pending Resolution of Defendant's Immunity Claim. Defendant urges me to reconsider my December 3, 1987 Order for a number of reasons. Defendant's core contention is that by ordering depositions before making a final determination on his motion for summary judgment:

 
the Court, in a manner that is, we submit, contrary to the established method in this Circuit of resolving immunity claims in Bivens cases, ordered discovery which neither party sought in a case with undisputed facts. We respectfully submit that the Court clearly erred by conditioning the resolution of the defendant's motion for summary judgment, based on his immunity, on the parties's engaging in discovery when the fundamental facts bearing on Dr. Gilley's immunity were not in dispute.

 Memorandum of Points and Authorities in Support of Defendant's Motion for Reconsideration and for a Stay of Discovery Pending Resolution of Defendant's Immunity Claim (hereinafter "Defendant's Brief for Reconsideration") at 5. After careful consideration of defendant's motion, I have determined, as I did before, that his motion to dismiss, or in the alternative, for summary judgment, must be denied at this time. Despite defendant's insistence that "the court must resolve the motion for summary judgment before permitting any discovery," I reiterate that I am willing to hear renewed motions for summary judgment by either party after the completion of discovery.

 THE FACTS

 For the purposes of defendant's motion, the truth of the allegations in the complaint and plaintiff's supporting materials must be taken as true, and any ambiguities or uncertainties concerning the sufficiency of the claim must be resolved in favor of the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Paul v. Davis, 424 U.S. 693, 720, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (Brennan, J. dissenting); Walker Process Equipment Inc., v. Food, Machinery & Chemical Corp., 382 U.S. 172, 174-175, 15 L. Ed. 2d 247, 86 S. Ct. 347 (1965); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Doe v. United States Dept. of Justice, 243 U.S. App. D.C. 354, 753 F.2d 1092 (D.C. Cir. 1985); Sinclair v. Kleindienst, 229 U.S. App. D.C. 13, 711 F.2d 291 (D.C. Cir. 1983). Although the defendant has labelled his motion one either for summary judgment or to dismiss, he has not put into evidence any affidavits which would contradict the substantive facts set forth by plaintiff. *fn1" I must therefore treat the facts alleged by plaintiff as admitted, as I would on a motion to dismiss. As the Supreme Court has asserted, "a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46; Hughes v. Rowe, 449 U.S. 5, 10, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980).

 The following allegations by plaintiff therefore must be accepted as the relevant facts for purposes of this motion:

 According to plaintiff, he was employed as a clinical psychologist at St. Elizabeth's Hospital, Washington, D.C. ("St. E's"), for approximately six years prior to his resignation on October 1, 1985. Defendant was plaintiff's immediate supervisor at St. E's for the year immediately preceding plaintiff's departure from St. E's.

 Plaintiff resigned from St. E's mainly because of long-standing personal and professional differences with defendant. Prior to his professional relationship with the defendant, plaintiff received exemplary job performance ratings from his supervisors.

 In early September, 1985, plaintiff received advanced notice from St. E's that he was going to be terminated from his position at the Hospital. The termination was due, at least in part, to plaintiff's conflicts with the defendant. In September, plaintiff met with officials at the Hospital and reached an agreement that if he resigned from his position, a letter of removal would not appear in his personnel file. In reaching such an agreement, plaintiff sought to protect his future job prospects and his good standing in his professional community. On October 1, 1985, pursuant to the agreement, plaintiff resigned from his position at St. E's.

 Concurrent with his removal/resignation from St. E's, plaintiff was in the process of obtaining a position as a clinical psychologist at the United States Army Medical Department Activity ("USAMDA") in Bremerhaven, West Germany. He was seeking a position for personal reasons -- he wanted to re-join a woman with whom he had a relationship and who lived there.

 A condition of plaintiff's employment with the Department of the Army is that he be "credentialed" as to the treatment of children and, independently, as to the treatment of adults. Although the record is neither clear nor developed as to the actual meaning of "being credentialed" in the profession of psychology, it appears that a psychologist must be credentialed for certain professional activities by any given hospital before he or she can be permitted to practice in those areas. *fn2" In this case, pursuant to both the common practices of the profession, and specific Army regulations, plaintiff could only work professionally with children at USAMDA in Bremerhaven after he received his credentials from the Hospital there for working with children. The same was true for working with adults.

 Plaintiff was credentialed to work with both children and adults at St. E's. Because he had been credentialed at his former hospital and because of his extensive experience and expertise working with children, plaintiff expected that he would obtain his credentials in Bremerhaven without any difficulty.

 In mid-October, 1985, William R. Smith, Jr., LTC, MC, Deputy Commander for Clinical Services and Chairperson of the Credentials Committee at the USAMDA, contacted St. E's to obtain credentials information about plaintiff. He spoke with defendant, Dr. Gilley. The content of their discussion would appear to be quite important. Although we do not know what was said, the conversation was followed by a letter, on October 23, 1985, which according to plaintiff, made totally false and unsubstantiated allegations about the plaintiff. This letter has been submitted under seal by defendant. I have examined the letter in camera. While I am not lifting the seal at this time, if the plaintiff is correct that the statements contained in the letter are false and misleading, they would tend to give rise to a cause of action as plaintiff contends. In the letter, Dr. Gilley accuses the defendant of being inept, unethical, and untrustworthy among other things. Plaintiff claims these accusations are untrue and are totally inconsistent with the fact that he received exemplary job performance ratings from his superiors for five years. It is clear that at some point in this case, the substance of the letter and plaintiff's employment record will have to be reconciled.

 According to plaintiff, as a result of the information provided to Colonel Smith by defendant, plaintiff was denied his credentials by USAMDA for working with children. Plaintiff was informed by Colonel Smith that the reports they received about him from St. E's were "extremely unfavorable" and that the Credentials Committee therefore recommended that he not be credentialed. The decision to deny plaintiff his credentials was appealed by plaintiff. Plaintiff recently learned that his appeal had been denied. See Plaintiff's Opposition to Defendant's Motion for Reconsideration and for a Stay of Discovery Pending Resolution of Defendant's Immunity Claim (hereinafter Plaintiff's Opposition") at 2, n.1.

 Because of the difficulty in obtaining credentials that he was experiencing at the hospital in Bremerhaven, plaintiff applied in the Summer of 1986 for a psychologist position at an Army base in Stuttgart. He obtained a position and reported for work on July 28, 1986. He "was literally turned away and was told that [he] was not wanted because of what they had heard about me from Bremerhaven personnel." See Siegert Affidavit at 5.

 In September, 1986, plaintiff's credentials as to both adults and children were provisionally granted. Shortly thereafter, however, his credentials for treating children were revoked and he was involuntarily released from employment. Plaintiff brought this suit in November, 1986. Plaintiff was assigned to work in the medical library of the Army hospital at Bremerhaven until the resolution of several pending appeals of credentialing decisions. During the pendency of those appeals and this lawsuit, plaintiff "has been unable to find even remotely comparable employment." Plaintiff's Opposition at 2, n.1.

 ANALYSIS

 Plaintiff's basis for bringing suit in this federal court is his Bivens claim that Dr. Gilley's publication of defamatory information through both a letter and a telephone call to his new employers deprived him of a constitutionally protected liberty interest. The other four counts in plaintiff's complaint merely state common law claims which are only appropriate for adjudication in this court if they are pendent to a surviving federal claim. See generally United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966) ("Certainly if the ...


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