UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
No. 94-2092
DONNA SINGER,
Plaintiff, Appellee,
v.
STATE OF MAINE, ET AL.,
Defendant, Appellee.
JOHN LAFAVER, ET AL.,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
Before Torruella, Chief Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Roy S. McCandless, with whom Charles A. Harvey, Jr., and Verrill
& Dana were on brief for appellee State of Maine, Bureau of Taxation,
and appellants John LaFaver, David Campbell, Stephen Murray, and Elizabeth Dodge. Joyce A. Oreskovich, with whom Claudia C. Sharon, and Sharon &
Oreskovich were on brief for appellee.
April 13, 1995
BOWNES, Senior Circuit Judge. Plaintiff-appellee BOWNES, Senior Circuit Judge.
and defendants-appellants were employees of the State of
Maine Bureau of Taxation ("Bureau") when this suit arose.
Defendants were senior management supervisors.1 Plaintiff
Donna Singer was a tax examiner in the Collections Unit of
the Enforcement Division. Singer was discharged from the
Bureau in November 1992, less than a year after she (along
with six other Bureau employees) filed both state and federal
age and sex discrimination claims against her employers.
In February 1994, after having received right-to-
sue letters from both the Maine Human Rights Commission
("MHRC") and the Equal Employment Opportunity Commission
("EEOC"), Singer filed suit in the district court against the
Bureau and these defendants in their official and individual
capacities. The complaint alleged that defendants violated
state and federal law by firing her in retaliation for her
having filed the discrimination claims against them. The
complaint also alleged, under 42 U.S.C. 1983, that: (i)
the process by which Singer was terminated violated her due
process rights under the Fourteenth Amendment; and (ii)
defendants violated her Fifth Amendment right against
1. Defendant John LaFaver was State Tax Assessor; David Campbell was Director of the Administrative Services Division of the Department of Administrative and Financial Services; Stephen Murray was Director of the Enforcement Division; and Elizabeth Dodge was Acting Director of the Enforcement Division.
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compelled self-incrimination by firing her after she refused
to answer questions asked during an investigation into her
conduct as a Bureau employee. In response to defendants'
motion for summary judgment on all counts, the district court
held first, that Singer's cause of action under 42 U.S.C.
1983 was barred against the Bureau and the individual
defendants in their official capacities. Second, the court
denied defendants' motion for summary judgment on the
retaliation claims. Third, the court held that the
individual defendants were entitled to qualified immunity as
to the Fourteenth Amendment claim, and granted their motion
for summary judgment. Singer does not appeal this ruling.
Finally, the court denied defendants' motion for summary
judgment with respect to the Fifth Amendment claim, holding
that they were not entitled to qualified immunity. The sole
issue on appeal is whether defendants are entitled to
qualified immunity on the Fifth Amendment claim. We reverse.
I. Background I. Background
On appeal from a denial of a defendant's motion for
summary judgment, the court must view the facts in the light
most favorable to the plaintiff. Cotnoir v. University of
Maine Sys., 35 F.3d 6, 8 (1st Cir. 1994) (citing Febus-
Rodr guez v. Betancourt-Lebr n, 14 F.3d 87, 89 (1st Cir.
1994)). Both cases turned on the issue of qualified
immunity.
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In February 1992, Singer joined six other Bureau
employees in filing age and sex discrimination claims, first
with the MHRC, and later with the EEOC.2 In a letter dated
April 29, 1992, addressed to defendants Campbell and LaFaver,
the MHRC requested information relating to the discrimination
complaint ("the complaint"), and asked that certain Bureau
representatives be present at a fact-finding conference
scheduled for June 5, 1992. Over the next several months
following the filing of the complaint, the MHRC conducted an
investigation of the claims alleged therein.3 During this
period, certain incidents occurred which caused Singer to
feel that she was being "singled out" for questioning and
disciplinary action in retaliation for her involvement with
the complaint.
The first incident occurred on May 29, 1992, when
Singer was questioned by a supervisor, Frank Hiscock,4
apparently for the first time in her twenty-one year career
with the Bureau, about a pattern of tardiness. Singer
explained that unforeseeable tardiness was an unavoidable
2. Prior to February 1992, Singer had never filed a union grievance; she had, however, filed a previous complaint with the MHRC, when she was "passed over" for the job of tax examiner in the early 1980's.
3. The EEOC held its own investigation in abeyance pending the outcome of the MHRC investigation.
4. Hiscock is not a party to this litigation, but was among those whose presence was requested at the MHRC fact-finding conference.
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consequence of a disability from which she had suffered for
fifteen years prior to this incident. According to the
defendants, the Bureau had no previous knowledge or record of
Singer's disability and the decision to question her about
her tardiness was in no way connected to her involvement with
For her part, Singer maintains that her tardiness
had never before been an issue; that, prior to the filing of
the complaint, her tardiness had been neither documented nor
questioned by any supervisor; and that, when she was tardy,
she always made up the time at the end of the day. In
response to the supervisor's request, Singer arranged with
her attorney and doctor to provide the Bureau with
documentation of her medical condition. The attorney
informed defendant LaFaver of Singer's disability soon after
the May incident, and the doctor prepared the statement in
early June. By error, however, the doctor's statement was
not sent to the Bureau at that time.
On October 16, 1992, Singer was again confronted
with the issue of tardiness by a new supervisor, Mark
Hathaway,5 a former co-worker, who stated that he was
unaware of her disability and that there was no doctor's
confirmation of her condition on file with the Bureau.
5. Like Hiscock, Hathaway is not a party to this suit, but his attendance at the MHRC fact-finding conference was also requested.
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Singer's attorney subsequently enclosed the doctor's
statement with a letter to defendant Murray, dated October
21, 1992.
Singer's belief that she had been targeted for
discipline because of her involvement in the complaint was
buttressed by her discovery that, some time after the
complaint was filed, defendant Campbell, in a memorandum to
Sawin Millet, Commissioner of the State of Maine Department
of Administrative and Financial Services, had referred to
Singer as one of the "troublemakers" at the Bureau.
In late August 1992, an incident ("the TRACE
incident") occurred, which prompted the Bureau to investigate
Singer's conduct as a Bureau employee. To understand the
TRACE incident, it is necessary to know more about Singer's
job. A tax examiner in the Collections Unit monitors
delinquent taxpayer accounts and contacts these taxpayers in
an effort to collect the taxes owed. Each examiner services
many hundreds of accounts. Information relating to each
account, along with information regarding contacts made and
actions taken by the examiner, are recorded in a computerized
system known as TRACE. The examiner's first step in the
collection process is to attempt to make personal contact
with the taxpayer, by telephone or in writing. In the event
the examiner is unsuccessful in her attempts to collect the
taxes, the next step is to issue a levy demand against the
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taxpayer, which notifies the taxpayer that the debt must be
paid within ten days, and outlines the actions to be taken if
payment is not received within that time. These actions
include, but are not limited to, involuntary wage levies,
liens, seizure of property, and public disclosure of the debt
in court. If the debt is not paid in response to the levy
demand, the state is allowed to take possession of the
taxpayer's assets in lieu of payment.
By law and Bureau policy, employees are required to
maintain the confidentiality of all taxpayer records. Bureau
policy requires that each employee sign a statement
acknowledging both the responsibility to maintain
confidentiality and that the unauthorized disclosure of tax
information could result in immediate dismissal and the
imposition of penalties under state and federal law. Singer
signed confidentiality statements in 1985 and 1987.
The TRACE incident began when a Bureau supervisor
received an anonymous telephone call from a woman who accused
a Bureau clerk of discussing her tax account outside the
Bureau. The accusation was apparently unfounded. The clerk
had recently experienced a number of problems with a woman
who had become involved with her estranged husband. She
suspected that the anonymous caller was the same woman and
that the call had been made in order to cause the clerk
trouble with the Bureau. Having identified the woman as a
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delinquent taxpayer whose active account had been assigned to
Singer, the clerk and another employee talked to Singer about
the situation.
Singer herself had no personal relationship with
the suspected caller and did not know her. Singer gathered
from the conversation that the clerk was very upset because
she thought that she might be fired as a consequence of the
anonymous call. Singer looked up the name of the woman in
the TRACE system and noted the status of the account.
Singer's conversation with the clerk later resumed. When, in
the course of relating another incident involving the
suspected caller, the clerk mentioned the city in which the
woman lived, Singer realized that this information did not
comport with the address listed for that account in the TRACE
system, the address at which Singer tried unsuccessfully to
contact the woman a year ago, when she had last worked on the
account. Singer then asked for and received from the clerk
the correct address and telephone number for the woman.
When Singer returned to her work station, she again
called up the woman's account on the TRACE system, and
recorded the following message: "[The woman] called in to try
to get [the clerk] in trouble. The complaint was unfounded
and that of a personal nature between them." Singer argues
that it was not at all unusual to record such a message and
that she did so simply to notify other employees who might
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have dealings with the account that the woman might cause
problems.
In the course of recording the message, Singer
noticed a "CP code" on the system that alerted her to the
fact that the taxpayer was listed on another part of the
system as owing additional taxes. According to Singer, it
was part of her job as an examiner to consolidate these
accounts and inform the taxpayer of the total amount owed.
In order to do that, it was necessary to enter into the
system a request for a levy demand. According to Singer,
under these circumstances, in which the examiner has
previously tried and failed to establish contact with the
taxpayer, and must now notify the taxpayer of the total
amount of the consolidated debt, a levy demand is the only
means of notification available to the examiner.
Accordingly, in addition to updating the address and phone
number, Singer entered the following TRACE message: "Going to
have [the accountant] send a Levy Demand on all because they
also owe for a CP under 1983."
The clerk somehow learned of the TRACE message, was
upset by it, and reported it to her supervisor, Brian Mahany.
When Singer learned that the clerk was upset about the
message, she asked to speak with Mahany about it in order to
explain to him what she had done and why. Although Singer
believed she had done nothing unusual or inappropriate,
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Mahany made it clear that he thought otherwise. After asking
her to remove the message, which was impossible because the
messages entered are permanent, Mahany instructed Singer to
add the following message: "If this lady should call with any
complaint, give call to a supervisor." He then took action
to freeze the levy demand and reported the matter to
defendants Dodge and Murray. The Bureau's position is that
Singer's conduct in this regard was subject to investigation
and possible discipline because Singer: (i) removed the
account from its predetermined position in the TRACE system's
chronological order of priority without first attempting
personal contact with the taxpayer; (ii) entered a personal
message on the TRACE system and took official action against
a taxpayer for personal reasons; and (iii) issued the levy
demand out of the normal sequence in which such action would
have been taken in the ordinary course of Bureau business.
Singer's position is that the Bureau's response to
the TRACE incident is another indication that she had been
targeted for discipline because of her participation in the
MHRC complaint. She argues that her conduct was not
inappropriate because neither the message nor the actions she
took were personal, unusual, or extreme. Furthermore,
affidavits sworn by co-workers indicate that: (i) such
messages were frequently entered into the system, sometimes
by supervisors; (ii) at the time of the TRACE incident, there
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were no written rules governing such messages; and (iii) at
the time of the incident, the decision when to issue a levy
demand was discretionary with the tax examiner.
On August 27, 1992, Singer was called to a meeting
with defendant Dodge and Supervisor Mahany, at which Dodge
questioned her about the TRACE incident. Dodge took the
position that Singer's actions were related to the personal
life of a Bureau employee, rather than to official Bureau
business, and therefore were inappropriate. Singer explained
that the message was neither personal nor unusual, and that
her decision to issue the levy demand had nothing to do with
the clerk's problems with the caller. Unsatisfied with
Singer's explanation for her conduct, Dodge informed Singer
that the investigation would continue. According to Singer,
Dodge also asked Singer to provide her with examples of
similar messages that had been entered into the TRACE system.
A meeting to investigate the matter further was
scheduled for October 2, 1992. On September 30, 1992,
Singer's attorney called defendant Dodge to request
permission to attend the meeting. Singer wanted her attorney
present because she felt certain that she was being singled
out for disciplinary action in retaliation for the MHRC
complaint. The request was granted, but the attorney was
unable to attend the meeting for other reasons. Present at
the meeting for the Bureau were Supervisor Hathaway,
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Personnel Manager Pat Beaudoin, and defendants Murray and
Dodge. Singer was present, represented by Roger Parlin of
the Maine State Employees Association ("MSEA"). Parlin is
not an attorney.
At the outset of the meeting, Dodge announced that
its purpose was to discuss an incident related to Singer's
work. She then questioned Singer about the TRACE incident
and Singer answered all the questions put to her. Although
the record is not clear as to exactly what happened at the
conclusion of the questioning, it does establish the
following: (i) Parlin tried to ascertain whether it was the
Bureau's position that Singer had broken the law; (ii)
although Murray stated that the meeting was a fact-finding
session and not a criminal investigation, both Singer and
Parlin believed there to be a threat of criminal charges;
(iii) Parlin had in his possession copies of TRACE screen
printouts, which had been redacted so as to exclude
confidential taxpayer information, and which contained
messages similar to the one for which Singer was under
investigation that had been entered into the system by other
Bureau employees;6 (iv) at some point, the defendants became
6. The record also indicates that, in the course of her questioning of Singer, Dodge herself displayed a similarly redacted printout of the TRACE screen at issue in the investigation, in full view of Parlin.
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aware that Parlin had these documents in his possession; and
(v) Parlin, followed by Singer, left the meeting abruptly.
Concerned that Singer had disclosed confidential
taxpayer records to union representatives without
authorization, in violation of law and Bureau policy,
defendants Murray and LaFaver attempted to recover from
Parlin and the MSEA any confidential Bureau records in their
possession. In one such attempt, a letter to the MSEA Chief
Counsel dated October 14, 1992, LaFaver stated that he had
reviewed the matter with the State Attorney General, who
shared his view that "this situation appears to involve an
extremely serious breach of taxpayer confidentiality." The
MSEA maintained throughout that it did not have any
confidential taxpayer information.
Meanwhile, in letters to defendants Murray and
Dodge, dated October 21 and October 27, 1992, respectively,
Singer's attorney stated that she understood Singer to have
been threatened with criminal charges at the October 2
meeting, and asked to be advised of the nature and status of
those charges. In both letters, the attorney made it clear
that Singer would not be allowed to meet with anyone
concerning criminal charges without benefit of counsel. In
the letter of October 27, the attorney also said that, in
order to advise her client, she needed to know the questions
that would be asked at the next investigatory meeting. The
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Bureau did not respond to these requests for clarification
regarding the threat of possible criminal charges perceived
by Singer and her representatives.
The Bureau scheduled another meeting for November
10, 1992, in order to ask additional questions. The Bureau
was represented at this meeting by the same people who
attended the October 2 meeting: Supervisor Hathaway,
Personnel Manager Beaudoin, and defendants Murray and Dodge.
Singer was present, represented by Robert McLaughlin, a
different MSEA representative, who is not an attorney.
Singer's attorney was present, but was not allowed to
participate. At the outset of this meeting, prior to any
questioning, McLaughlin asked to know the purpose of the
meeting, whether it was a criminal investigation, and whether
he could tape the meeting. Defendant Dodge replied that the
meeting pertained only to alleged work-related misconduct,
that it was not a criminal investigation, that no one at the
Bureau was empowered to conduct a criminal investigation, and
that the meeting could not be taped.
Before proceeding with the questioning, defendant
Dodge told Singer that it would be to her advantage to answer
the questions. Singer was neither advised of, nor was she
asked to waive, her Fifth Amendment privilege against self-
incrimination. She was not told that there would or would
not be a criminal investigation in the future; nor was she
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informed whether the answers she gave at this meeting could
be used against her in a subsequent criminal proceeding, or
that she would be fired if she refused to answer the
questions put to her at this meeting.
The first two questions asked whether Singer had
provided Parlin with TRACE screen printouts or other Bureau
documents. When Singer did not answer these questions
pursuant to the whispered instructions of her attorney,
McLaughlin was reminded that the attorney was not allowed to
participate in the meeting. Singer's attorney thereupon
requested and received a copy of the five questions to be
asked, and met outside privately with Singer and McLaughlin.
When the investigatory meeting reconvened, McLaughlin
announced that he would not allow Singer to answer questions
one through four (which asked whether Singer had disclosed to
Parlin or to anyone else TRACE screen printouts or other
Bureau documents) because they were not job related. After
repeating her previous admonition that it would be to
Singer's advantage to answer, defendant Dodge asked the five
questions. The record indicates that McLaughlin would not
allow Singer to answer questions one through four. There is
no indication that Singer verbally invoked her Fifth
Amendment privilege at any time during the meeting. In
answer to the last question (whether Singer agreed with the
MSEA Chief Counsel that Murray had given a TRACE screen
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printout to Parlin at the October 2 meeting) Singer replied
that defendant Dodge, rather than defendant Murray, had done
so. Before the meeting adjourned, McLaughlin stated that the
MSEA had nothing confidential in its possession.
On November 16 and 17, 1992, McLaughlin spoke by
telephone with Personnel Manager Beaudoin. McLaughlin stated
that Singer's attorney had reviewed the criminal statutes and
determined that admissions made by Singer could subsequently
be used against her. He added that Singer would answer
questions presented in writing if they were related to the
original incident, but that the questions asked at the
November 10 meeting would not be answered.
On November 19, 1992, defendant LaFaver delivered
to Singer a letter informing her that the investigators had
concluded as follows: (i) Singer had ordered the levy demand
for personal reasons, an inappropriate activity constituting
misconduct;7 (ii) she had given confidential documents to a
person not entitled to possess them, an inappropriate
activity constituting gross misconduct;8 (iii) Singer
refused both to acknowledge this misconduct and to give any
reassurances that it would not be repeated; and (iv) the
7. According to the Bureau's report of the investigation, a document separate and apart from LaFaver's letter, this conduct constitutes grounds for disciplinary action.
8. According to the Bureau's report, this conduct constitutes grounds for dismissal.
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Bureau could no longer trust Singer with confidential Bureau
records. As a result, Singer was immediately placed on
administrative leave, and dismissed from the Bureau on
November 24, 1992. Although the letter also informed Singer
that she had a right to meet with LaFaver on November 23,
1992, to discuss her dismissal, Singer did not do so.
As has been stated, Singer and six other Bureau
employees had filed discrimination complaints with the MHRC
and the EEOC in February 1992. In November 1993, Singer
received right-to-sue letters from both agencies. On
February 8, 1994, she filed in the district court the suit
giving rise to this appeal.
We now turn to the only issue before us on appeal,
the question whether the individual defendants are entitled
to qualified immunity as to the 1983 Fifth Amendment claim.
II. Standard of Review II. Standard of Review
To the extent a district court order denying a
claim of qualified immunity turns on an issue of law, it is
an appealable final decision within the meaning of 28 U.S.C.
1291. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985);
Cotnoir v. University of Maine Sys., 35 F.3d at 9.
Where a qualified immunity defense is asserted by
pre-trial motion, the usual summary judgment standards apply.
Amsden v. Moran, 904 F.2d 748, 752 (1st Cir. 1990), cert.
-17- 17
denied, 498 U.S. 1041 (1991). Accordingly, summary judgment
is proper only if the "pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed. R. Civ. P. 56(c).
III. Discussion III. Discussion
A. Qualified Immunity A. Qualified Immunity
1. 1.
It is undisputed that Singer was discharged from
the Bureau, in part, for her refusal to answer the questions
asked of her at the November 10 meeting. Defendants make two
arguments on appeal. First, they argue that their actions
did not violate Singer's Fifth Amendment rights according to
established precedent at the time of these events. Second,
they argue that there was no clearly-established right of a
public employee to refuse to answer employment-related
questions where: (i) the employer did not seek a waiver of
the employee's Fifth Amendment right against self-
incrimination; (ii) the employee did not actually claim the
Fifth Amendment privilege; and (iii) the employee's answers
were never used against her in a subsequent criminal
prosecution.
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Qualified immunity shields public 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 v. Fitzgerald,
457 U.S. 800, 818 (1982). The right alleged to have been
violated must have been clearly established at the time of
the alleged violation, id., and "[t]he contours of the right
must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right."
Anderson v. Creighton, 483 U.S. 635, 640 (1987).
The qualified immunity analysis focuses on the
objective reasonableness of the defendant's actions. "[T]he
relevant question is whether a reasonable official could have
believed his actions were lawful in light of clearly
established law and the information the official possessed at
the time of his allegedly unlawful conduct." Febus-
Rodr guez, 14 F.3d at 91 (quoting McBride v. Taylor, 924 F.2d
386, 389 (1st Cir. 1991)) (other citation omitted). In
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), the Supreme
Court characterized the qualified immunity defense as an
entitlement to "immunity from suit rather than a mere defense
to liability . . . . "
In applying these principles to a recent qualified
immunity determination, the Supreme Court stated: "A
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necessary concomitant to the determination of whether the
constitutional right asserted by a plaintiff is `clearly
established' at the time the defendant acted is the
determination of whether the plaintiff has asserted a
violation of a constitutional right at all." Siegert v.
Gilley, 500 U.S. 226, 232 (1991). We subsequently cited
Siegert for the proposition that "before even reaching
qualified immunity, a court of appeals must ascertain whether
the appellants have asserted a violation of a constitutional
right at all." Watterson v. Page, 987 F.2d 1, 7 (1st Cir.
1993). Thus, as a predicate to the objective reasonableness
inquiry, "a plaintiff must establish that a particular
defendant violated the plaintiff's federally protected
rights." Febus-Rodr guez, 14 F.3d at 91 (citations omitted).
Applying these principles, the threshold question
in our qualified immunity analysis is whether Singer has
established that defendants violated her Fifth Amendment
right against self-incrimination. There is no indication in
the record that Singer at any time actually stated that she
was refusing to answer questions on Fifth Amendment grounds.
Instead, she simply remained silent on the advice of her
attorney and union representative.9 Under these
9. Moreover, at oral argument, Singer stated that she was not coerced at the November 10 meeting.
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circumstances, it would appear that there is a real question
as to whether Singer actually asserted a Fifth Amendment
violation.
In her brief, Singer states that "a constitutional
violation occurs when an employee is penalized for remaining
silent." Appellee's Brief at 21. In their brief, defendants
state that Singer did not invoke the Fifth Amendment at the
November 10 meeting, but instead refused to respond to the
questions asked because they were not job related.
Appellants' Brief at 25. These brief references
notwithstanding, the parties have not argued before this
court the question whether the Fifth Amendment requires that
one who seeks to invoke its protection must explicitly claim
the privilege, as distinct from simply exercising it by
remaining silent in the face of potentially incriminating
questions. Under the circumstances, we will assume, without
deciding, that Singer invoked the privilege against self-
incrimination.
2. 2.
As recently explained by retired Supreme Court
Justice Powell, the inquiry whether the right at issue was
clearly established properly focuses "not upon the right at
its most general or abstract level, but at the level of its
application to the specific conduct being challenged." Wiley
v. Doory, 14 F.3d 993, 995 (4th Cir. 1994) (quoting Pritchett
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v. Alford, 973 F.2d 307, 312 (4th Cir. 1992)). "Moreover,
`the manner in which this [clearly established] right applies
to the actions of the official must also be apparent.'" Id.
(quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.
1992)) (citations omitted) (alteration in original). "[I]f
there is a `legitimate question' as to whether an official's
conduct constitutes a constitutional violation, the official
is entitled to qualified immunity." Id. (quoting Tarantino
v. Baker, 825 F.2d 772, 775 (4th Cir. 1987)).
We think that this perspective gives a clear view
of the qualified immunity issue.
B. The Fifth Amendment Rights of Public Employees B. The Fifth Amendment Rights of Public Employees
The Fifth Amendment states that no person "shall be
compelled in any criminal case to be a witness against
himself." U.S. CONST. amend. V. The Supreme Court has
addressed the Fifth Amendment rights of public employees in
the Garrity line of cases. See Garrity v. New Jersey, 385
U.S. 493 (1967); Gardner v. Broderick, 392 U.S. 273 (1968);
Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation,
392 U.S. 280 (1968). See also Lefkowitz v. Turley, 414 U.S.
70 (1973); Lefkowitz v. Cunningham, 431 U.S. 801 (1977).
In Garrity, police officers were compelled under
the threat of termination to answer incriminating questions
in the course of an investigation into traffic-ticket
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"fixing." Prior to questioning, each officer was warned, in
accordance with a state statute, as follows:
(1) that anything he said might be used against him in any state criminal proceeding; (2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but (3) that if he refused to answer he would be subject to removal from office.
Garrity, 385 U.S. at 494.
The officers were not asked to sign a waiver of
immunity and there was no immunity statute applicable under
the circumstances. The officers answered the questions and
some of these answers were used against them in a later
criminal proceeding. The Court concluded that the officers
had been forced to choose between losing their jobs and
incriminating themselves, and held that their coerced
statements, "obtained under threat of removal from office,"
could not be used against them in subsequent criminal
proceedings. Id. at 500.
Gardner and Uniformed Sanitation Men both involve
public employees (in Gardner, a police officer; in Uniformed
Sanitation Men, municipal sanitation workers) who were
unconstitutionally "confronted with Hobson's choice between
self-incrimination and forfeiting [their] means of livelihood
. . . . " Gardner, 392 U.S. at 277; see also Uniformed
Sanitation Men, 392 U.S. at 284. In Gardner, a police
officer, who was subpoenaed to appear before a grand jury
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investigating alleged bribery and corruption of police
officers, was advised as follows: (i) that the grand jury
intended to ask him questions concerning the performance of
his official duties; (ii) that he had a constitutional
privilege against self-incrimination; and (iii) that by law
he was required to sign a waiver of immunity or else be
fired. After he refused to testify and to sign the waiver,
the officer was given an administrative hearing and
discharged pursuant to a provision of the New York City
Charter, solely for his refusal to waive his Fifth Amendment
rights. Gardner, 392 U.S. at 274-75. Noting that the
officer "was discharged from office, not for failure to
answer relevant questions about his official duties, but for
. . . failure to relinquish the protections of the privilege
against self-incrimination," id. at 278, the Court held
unconstitutional both the officer's dismissal for his refusal
to waive his immunity and the Charter provision that
authorized it.
Significantly, the Court in Gardner and in
Uniformed Sanitation Men preserved the right of a public
employer to ask job-related questions of the employee:
If appellant, a policeman, had refused to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself, the privilege against self-
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incrimination would not have been a bar to his dismissal.
Gardner, 392 U.S. at 278 (citation omitted); see also
Uniformed Sanitation Men, 392 U.S. at 284.
Justice Powell concludes that the "language in
these cases suggests that the right against self-
incrimination is not violated by the mere compulsion of
statements, without a compelled waiver of the Fifth Amendment
privilege or the use of compelled statements against the
maker in a criminal proceeding." Wiley v. Doory, 14 F.3d at
996 (citation omitted); see also Wiley v. Mayor of Baltimore,
--- F.3d ---, 1995 WL 85433, 3 (4th Cir. 1995); accord Hester
v. City of Milledgeville, 777 F.2d 1492, 1494 (11th Cir.
1985); Gulden v. McCorkle, 680 F.2d 1070, 1074 (5th Cir.
1982), cert. denied, 459 U.S. 1206 (1983); Uniformed
Sanitation Men Ass'n v. Commissioner of Sanitation, 426 F.2d
619, 627 (2nd Cir. 1970), cert. denied, 406 U.S. 961 (1972).
In United States v. Indorato, 628 F.2d 711, 716
(1st Cir.), cert. denied, 449 U.S. 1016 (1980), this court
summarized the Garrity line of cases in similar fashion,
noting the two features common to Garrity and its progeny:
(1) the person being investigated is explicitly told that failure to waive his constitutional right against self- incrimination will result in his discharge from public employment (or a similarly severe sanction imposed in the case of private citizens); and (2) there is a statute or municipal ordinance mandating such procedure.
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(Footnote omitted).
In Indorato, appellant, a state trooper who had
been convicted of conspiracy, theft and perjury, contended on
appeal that his statements in response to questions asked by
his superior officers during an investigation of the events
which gave rise to the charges were coerced, and therefore
inadmissible against him at trial under the Fifth Amendment.
Indorato, who was not in custody at the time he made the
statements, was not advised of his rights prior to
questioning and was not threatened with dismissal for refusal
to answer the questions asked of him.
Relying on Garrity, Indorato argued that the threat
of dismissal was nevertheless implied because he was being
questioned by superior officers and was well aware that the
departmental rules governing the state police provided for
the dismissal of officers who refused to obey the lawful
orders of superior officers. Under these circumstances,
Indorato viewed himself as having been put in the same
position as the officers in Garrity.
In rejecting Indorato's argument, we stated: "In
this case, there was no explicit `or else' choice and no
statutorily mandated firing is involved. We do not think
that the subjective fears of defendant as to what might
happen if he refused to answer his superior officers are
sufficient to bring him within Garrity's cloak of
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protection." Indorato, 628 F.2d at 716. In holding that
there was no Fifth Amendment violation on these facts, we
said:
Here, defendant did not claim the privilege. He was not told that he would be dismissed if he failed to answer the questions asked. He was not asked to sign a waiver of immunity. There was no statute mandating dismissal for refusal to answer hanging over his head. Defendant, here, was not, as in Garrity,
put between the rock and the whirlpool; he was standing safely on the bank of the stream.
Id. at 717 (citation and internal quotation marks omitted).
Singer, like Indorato, did not explicitly claim the
privilege; was not told that she would be dismissed if she
failed to answer the questions asked of her; was not asked to
sign a waiver of immunity; and had no statute mandating
dismissal for refusal to answer hanging over her head.10
Accordingly, Singer was not put "between the rock and the
10. In Indorato, we said that the language used in the state
police departmental rules, which provided that a trooper may
be tried and upon conviction may be subject to dismissal or
other disciplinary action for violation of the rules, "suggests that dismissal would not have automatically followed defendant's invocation of the [F]ifth [A]mendment." Indorato, 628 F.2d at 716.
As stated in the text, here, there is no statute mandating dismissal for refusal to answer questions. Moreover, the language used in the Bureau's confidentiality statement suggests that dismissal would not automatically follow an employee's invocation of the Fifth Amendment: "Unauthorized disclosure of any tax information may result in
immediate dismissal and imposition of penalties prescribed by Maine and Federal statutes." Appendix p. 00080 (emphasis added).
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whirlpool," as were the plaintiffs in the Garrity line of
cases. Instead, like Indorato, she was "standing safely on
the bank of the stream."
Therefore, we must agree with defendants that their
actions did not amount to a violation of a clearly-
established Fifth Amendment right under Supreme Court and
First Circuit precedent at the time of these events. See
also In re Grand Jury Proceedings, 835 F.2d 375, 376 (1st
Cir. 1987) (the Fifth Amendment "does not shield a person
from every adverse social or economic consequence which may
flow from testifying," and is not violated where a public
employee who has been granted immunity is required to testify
before a grand jury investigating illegal activities)
(citation omitted); O'Brien v. DiGrazia, 544 F.2d 543, 546
(1st Cir. 1976) (Fifth Amendment rights of police officers
dismissed for refusing to complete a required financial
questionnaire as part of an investigation into their alleged
relationship with organized crime were not violated because
the "privilege is not infringed when public employees are
dismissed for failing to answer questions `specifically,
directly, and narrowly relating to the performance of their
official duties . . . . '" (quoting Uniformed Sanitation
Men, 392 U.S. at 284) (other citation omitted)), cert. denied
sub nom. O'Brien v. Jordan, 431 U.S. 914 (1977); accord
Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation,
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426 F.2d at 627 ("The proceeding here involved no attempt to
coerce relinquishment of constitutional rights, because
public employees do not have an absolute constitutional right
to refuse to account for their official actions and still
keep their jobs . . . .").
In view of the divergence of opinion among the
circuits with respect to the various issues that circumscribe
the Fifth Amendment rights of public employees, we agree with
the defendants that the law in this area was unsettled at the
time of these events and remains so today.11
When viewed at the level of their application to
the specific conduct being challenged here, neither the
contours of the Fifth Amendment right itself, nor the manner
in which that right applies to the actions of these
defendants are at all apparent. Thus, whatever else may be
said of the law governing the Fifth Amendment rights of
public employees in these circumstances, it cannot be
maintained that it was then or is now clearly established.
We cannot conclude that defendants knew or should
have known that their actions violated Singer's clearly-
11. See Justice Powell's review of the federal law in this
area in Wiley v. Doory, 14 F.3d at 998 ("Today, approximately
six years after Doory's alleged conduct, the law remains unsettled."); and in Wiley v. Mayor of Baltimore, 1995 WL
85433 at 4 ("We recognize that, in cases involving private citizens, there is some inconsistency in the circuits regarding whether or not a Fifth Amendment violation can occur when the fruits of coerced questioning are not used.").
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established Fifth Amendment rights. Indeed, it could be
reasonably argued that under the applicable law, there was no
Fifth Amendment violation at all. Accordingly, we hold that
defendants are entitled to qualified immunity as to the
1983 Fifth Amendment claim.
IV. Conclusion IV. Conclusion
For the foregoing reasons, the district court's the district court's
order denying summary judgment to defendants on the Fifth order denying summary judgment to defendants on the Fifth
Amendment claim is reversed. No Costs. Amendment claim is reversed. No Costs.
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