Justice MARSHALL, with whom Justice BLACKMUN joins, and with whom Justice STEVENS joins as to Parts II and III, dissenting.
The majority today decides a question on which we did not grant certiorari. Moreover, in deciding that petitioner Siegert failed to allege a violation of a clearly established constitutional right, the majority completely mischaracterizes the nature of Siegert's claim. Siegert alleged significantly more than mere "damage [to] reputation" and "future employment prospects." Ante, at 234. Because the alleged defamation was "accompan[ied] [by a] loss of government employment," Paul v. Davis, 424 U.S. 693 , 706, 96 S.Ct. 1155, 1163, 47 L.Ed.2d 405 (1976) (emphasis added), as well as a change in "legal status" occasioned by the effective foreclosure of any opportunity for hospital credentials, see id., at 705, 96 S.Ct., at 1162-63, Siegert has alleged the deprivation of a cognizable liberty interest in reputation. Because I view the majority's disposition of this case as both procedurally and substantively unjustified, I dissent.
The majority incorrectly claims that "[w]e granted certiorari in this case to determine whether the . . . Court of Appeals . . . properly directed dismissal of petitioner's Bivens claim on the grounds that he had not overcome respondent's claim of qualified immunity." Ante, at 227. In fact, the two questions on which we granted certiorari were much more specific.
"1. In a claim for damages under Bivens v. Six Unknown Named Agents, 403 U.S. 388 , 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), in which malice has been alleged and where qualified immunity has been raised as a defense, whether a "heightened pleading" standard which precludes limited discovery prior to disposition on a summary judgment motion violates applicable law?
"2. 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.
One would have thought from the questioning during oral argument that the Court was well aware that it was at least debatable whether the issue the majority now decides was within the grant of review. When counsel for Siegert addressed the question whether Siegert had stated a compensable injury to a protected liberty interest she was admonished:
"[T]he first question presented in your petition for certiorari is the extent of discovery which you should be allowed where there's a defensive [sic ] qualified immunity. That really has nothing to do with the merits of your case I would think." Tr. of Oral Arg. 5.
When counsel raised the issue again she was told: "You really haven't explicitly addressed either of the questions presented in your petition for certiorari. I suggest you do so." Id., at 12. Rather than attempting to explain why the issue the majority today reaches is subsumed by the grant of certiorari, the majority disingenuously recharacterizes the question presented.
"Absent unusual circumstances, we are chary of considering issues not presented in petitions for certiorari." Berkemer v. McCarty, 468 U.S. 420 , 443, n. 38, 104 S.Ct. 3138, 3152, n. 38, 82 L.Ed.2d 317 (1984) (citation omitted). The majority makes no attempt to show that this case presents "unusual circumstances." Moreover, the significance of the issue the majority decides—the extent of a government employee's constitutional liberty interest in reputation—militates even more heavily in favor of restraint. As the author of today's opinion once wrote: "Where difficult issues of great public importance are involved, there are strong reasons to adhere scrupulously to the customary limitations on our discretion." Illinois v. Gates, 462 U.S. 213 , 224, 103 S.Ct. 2317, 2325, 76 L.Ed.2d 527 (1983). Adherence to "customary limitations on our discretion" is necessary not only to ensure that parties are not denied their "day in court" but also to ensure that we receive the full benefit of briefing and argument before deciding difficult and important legal issues. The issue that now has become central to the majority's disposition of this case received only scant briefing by the parties. See Brief for Petitioner 17-20; Brief for Respondent 26, n. 16. The majority's insistence on reaching this issue in this context disserves our adjudicative process and undermines public respect for our decisions.