In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1402
Ronald C. Denius,
Plaintiff-Appellant,
v.
Wayne Dunlap and Gary Sadler/1,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois, Urbana Division.
No. 97-C-2088--Harold A. Baker, Judge.
Argued January 6, 2000--Decided April 11, 2000
Before Coffey, Flaum and Kanne Circuit Judges.
Flaum, Circuit Judge. Ronald Denius filed suit
against Wayne Dunlap in his individual and
official capacity as director of the Lincoln
Challenge Program ("LCP") seeking injunctive,
declaratory and monetary relief under 42 U.S.C.
sec.sec. 1983 and 1988. Denius alleges that
Dunlap violated his constitutional rights when
Dunlap refused to renew his employment contract.
The district court granted summary judgment in
favor of the defendant on qualified immunity
grounds. For the reasons stated herein, we affirm
in part and reverse and remand in part.
I. BACKGROUND
The LCP is an eighteen-month program for 16 to
18 year old high school dropouts located on the
premises of the now-closed Chanute Air Force
Base. Students participating in the LCP live on
campus for the first five months of the program
and then live off campus for the remainder of the
program under the supervision of mentors. The LCP
uses a military training method with the goal of
teaching "life skills" instead of military skills
and has as its objective that all participants
obtain a GED. By 1996, the LCP had two 400
student classes each year. In 1996, the LCP
received 100 percent of its funding from the
federal government but was administered by the
State of Illinois. Students who have felony
convictions are not eligible to participate in
the LCP.
In 1993, Wayne Dunlap, an Army colonel, became
the director of the LCP. Dunlap retired from the
Army in 1994 but continued to serve as director
of the LCP, becoming an employee of the State of
Illinois.
Ronald Denius is a retired Air Force technical
sergeant who has earned two bachelor’s degrees
and a master’s degree. At the time he retired
from the Air Force, Denius had a "top secret"
security clearance. In March 1994, Denius began
work as a teacher at the LCP under a three-month
contract that was to last until the end of that
school year. Denius taught math, science, social
studies, language arts and writing skills. Denius
did not carry a weapon or have any duties beyond
those of a typical teacher.
On July 1, 1994, Denius signed a two-year
contract to continue teaching at the LCP. At this
time, he signed a release form that authorized
the LCP to perform a criminal background check
and collect his educational records (the "1994
Release"). This release did not contain a time
limitation. Criminal background checks were
performed on the initial group of LCP instructors
in 1994, but no further criminal background
checks were performed on LCP personnel until
1996.
In July of 1996, Denius was offered the
opportunity to renew his teaching contract with
the LCP provided he sign an Authorization for
Release of Personal Information
("Authorization"). This Authorization required
Denius to consent to the release of considerably
more confidential information than provided in
the 1994 Release. LCP Director Dunlap had
acquired the Authorization from Captain John
Moraitis of the Illinois State Police who
informed Dunlap that the Authorization was used
by the police for background checks of
gubernatorial candidates and applicants for
employment with the State Police. Moraitis
suggested that Dunlap consult an attorney before
using the Authorization at the LCP, but Dunlap
did not heed this advice.
The Authorization provided in pertinent part:
For the period of one year from the execution of
this form I ________, do hereby authorize a
review of and full disclosure of all records
concerning myself to any duly authorized agent of
the Lincoln Challenge Program, whether the said
records are of a public, private or confidential
nature.
The intent of this authorization is to give my
consent for full and complete disclosure of
records of educational institutions; financial or
credit institutions, including records of loans,
the records of commercial or retail credit
agencies (including credit reports and/or
ratings); and other financial statements and
records wherever filed; records maintained by the
National Personnel Records Center, the U.S.
Veteran’s Administration, and County, State or
Federal Law Enforcement Agencies; employment and
pre-employment records, including background
reports, efficiency ratings, complaints or
grievances filed by or against me and the records
and recollections of attorneys at law, or of
other counsel, whether representing me or another
person in any case, either criminal or civil, in
which I presently have, or have had an interest.
. . . I also certify that any person(s) who may
furnish such information concerning me shall not
be held accountable for giving this information;
and I do hereby release said person(s) from any
and all liability which may be incurred as a
result of furnishing such information. I further
release the Lincoln Challenge Program from any
and all liability which may be incurred as a
result of collecting such information.
Denius signed the 1996 employment contract but
refused to sign the Authorization. Dunlap told
Denius that his contract was not valid unless he
signed the Authorization. Denius attempted to
resume his teaching responsibilities on August 2,
1996, the beginning of the school term for that
year. When he did so, Dunlap informed Denius that
he could not be employed by the LCP unless he
signed the Authorization, and he asked Denius to
leave the LCP premises. Denius’s refusal to sign
the Authorization was the sole reason his
employment contract with the LCP was not renewed.
At the time he required Denius to sign the
Authorization, Dunlap did not intend to use it
for any purpose other than to perform a routine
criminal background check because the LCP did not
have the funds to perform a more thorough
background investigation. If the LCP had
possessed the funds, Dunlap would have conducted
a more extensive background check. However,
Dunlap did not tell Denius that he only intended
to use the Authorization for a routine criminal
background check.
Denius filed suit under 42 U.S.C. sec.sec. 1983
and 1988 asserting that Dunlap had violated his
constitutional rights under the First, Sixth and
Fourteenth Amendments by refusing to renew his
employment contract unless he signed the
Authorization. Denius sought injunctive,
declaratory and monetary relief. The district
court granted summary judgment in favor of
Dunlap, finding that Dunlap was entitled to
qualified immunity for all of the claims brought
by Denius. Denius now appeals.
II. DISCUSSION
A. Standard of Review
The district court granted summary judgment to
the defendant and denied summary judgment to the
plaintiff. We review a district court’s summary
judgment decisions de novo. See Henderson v.
Sheahan, 196 F.3d 839, 848 (7th Cir. 1999). In
conducting our evaluation, we view all evidence
in the light most favorable to the non-moving
party and draw all reasonable inferences in that
party’s favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986).
B. Monetary Relief
The district court concluded that Denius’s suit
for monetary damages was barred because Dunlap
was protected by qualified immunity. Denius
argues that the district court erred in reaching
this conclusion.
1. Qualified Immunity
The doctrine of qualified immunity is an
affirmative defense to allegations that a state
official violated the constitutional rights of a
plaintiff. Siegert v. Gilley, 500 U.S. 226, 231
(1991); Harlow v. Fitzgerald, 457 U.S. 800, 815
(1982). This defense is available only to state
officials who occupy positions with discretionary
or policymaking authority, and it protects those
individuals solely when they are acting in their
official capacity. Harlow, 457 U.S. at 816. These
officials "are shielded 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, 457 U.S. at 818; see Wilson v.
Layne, 119 S.Ct. 1692, 1696 (1999); Anderson v.
Creighton, 483 U.S. 635, 638 (1987).
To evaluate a claim of qualified immunity, we
engage in a two-step analysis. First, we
determine whether the plaintiff’s claim states a
violation of his constitutional rights. Then, we
determine whether those rights were clearly
established at the time the violation occurred.
See Wilson, 119 S.Ct. at 1697; Khuans v. School
Dist. 100, 123 F.3d 1010, 1013 (7th Cir. 1997).
If the rights were clearly established, the
official may be liable for monetary damages and
the suit proceeds to the next stage. If the
rights were not clearly established, then the
official is immune from suit and the claim is
dismissed. See Richardson v. McKnight, 521 U.S.
399, 403 (1997) ("[A] legal defense may well
involve ’the essence of the wrong,’ while an
immunity frees one who enjoys it from a lawsuit
whether or not he acted wrongly."). Because the
doctrine of qualified immunity should not stand
as an impediment to the clarification and
evolution of a court’s articulation of
constitutional principles, we evaluate the
constitutionality of the official’s conduct even
though, in the end, he may not be held liable for
monetary damages flowing from that conduct. See
Wilson, 119 S.Ct. at 1697 ("Deciding the
constitutional question before addressing the
qualified immunity question . . . promotes
clarity in the legal standards for official
conduct, to the benefit of both the officers and
the general public."); County of Sacramento v.
Lewis, 118 S.Ct. 1708, 1714 n.5 (1998).
It is the plaintiff’s burden to demonstrate the
existence of a clearly established constitutional
right. Kernats v. O’Sullivan, 35 F.3d 1171, 1176
(7th Cir. 1994). A clearly established right is
one where "[t]he contours of the right [are]
sufficiently clear that a reasonable official
would understand that what he is doing violates
that right." Anderson, 483 U.S. at 640; see
Wilson, 119 S.Ct. at 1700. To determine whether
a right is clearly established, we look first to
controlling Supreme Court precedent and our own
circuit decisions on the issue. Because there is
an almost infinite variety of factual scenarios
that may be brought into the courtroom, a
plaintiff need not point to cases that are
identical to the presently alleged constitutional
violation. However, "the contours of the right
must have been established so that the
unlawfulness of the defendant’s conduct would
have been apparent in light of existing law."
Cleveland-Perdue v. Brutsche, 881 F.2d 427, 430
(7th Cir. 1989).
In the absence of controlling precedent, we
broaden our survey to include all relevant
caselaw in order to determine "whether there was
such a clear trend in the caselaw that we can say
with fair assurance that the recognition of the
right by a controlling precedent was merely a
question of time." Id. at 431. A split among
courts regarding the constitutionality of conduct
analogous to the conduct in question is an
indication that the right was not clearly
established at the time of the alleged violation.
See Wilson, 119 S.Ct. at 1701 ("If judges thus
disagree on a constitutional question, it is
unfair to subject [the defendant] to money
damages for picking the losing side of the
controversy."). In some rare cases, where the
constitutional violation is patently obvious, the
plaintiff may not be required to present the
court with any analogous cases, as widespread
compliance with a clearly apparent law may have
prevented the issue from previously being
litigated. See Kernats, 35 F.3d at 1176.
The plaintiff Denius alleges that the defendant
director of a state-run and federally-funded
educational institution abused his position of
authority by requiring the plaintiff to sign the
Authorization as a condition of employment in
violation of his constitutional rights. In
response to these allegations, the defendant
Dunlap asserts qualified immunity as an
affirmative defense. It is unquestioned that
Dunlap, as the director of a public school, is
entitled to qualified immunity for the decisions
he makes in hiring and firing the employees under
his supervision. See Khuans, 123 F.3d at 1013
(holding that a school superintendent making the
decision not to renew the contract of a school
psychologist was "a government official
performing discretionary functions" who was
entitled to qualified immunity). Thus, even if we
find that Dunlap violated Denius’s constitutional
rights by requiring him to sign the
Authorization, Dunlap is immune from suit for
damages under sec. 1983 if those rights were not
clearly established at the time in question.
2. Pickering Balancing Test
It is clearly established that a public school
teacher cannot have his employment conditioned
upon his relinquishment of a constitutional right
unless the interest of the school "as an
employer, in promoting the efficiency of the
public services it performs through its
employees," outweighs the individual interests of
the teacher in asserting his constitutional
rights. Pickering v. Board of Educ. of Township
High Sch. Dist. 205, 391 U.S. 563, 568 (1968);
see Abood v. Detroit Bd. of Educ., 431 U.S. 209,
234 (1977); Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 283-84 (1977);
Shelton v. Tucker, 364 U.S. 479, 488 (1960). At
this stage of the proceedings, the defendant has
articulated no interest that the LCP has in
obtaining the information it was permitted to
gather through the Authorization. Dunlap stated
that he did not intend to use any additional
information beyond that which Denius had already
consented to release for the initial 1994
background check, and Dunlap did not present any
other justification for requiring the
information./2 Because Dunlap has articulated no
interest that is promoted by requiring Denius to
sign the Authorization, it is unnecessary for us
to determine at this time whether the interests
of the LCP as an employer outweigh the
constitutional rights of Denius.
Dunlap acknowledges that the only reason Denius
was dismissed from his teaching position was his
refusal to sign the Authorization./3 Therefore,
if a finding that Denius has a clearly
established constitutional right not to sign the
Authorization is made, then it follows that
conditioning his employment as a public school
teacher on the relinquishment of that right
without any justification is a violation of a
clearly established right for which Dunlap cannot
receive qualified immunity. See Keyishian v.
Board of Regents, 385 U.S. 589, 605-06 (1967)
("[T]he theory that public employment which may
be denied altogether may be subjected to any
conditions, regardless of how unreasonable, has
been uniformly rejected.") (citations omitted).
We now examine each of Denius’s constitutional
claims to determine: 1) whether a constitutional
right exists; and 2) whether that right was
clearly established at the time in question.
3. Attorney-Client Privilege
The Authorization requires that Denius "give
[his] consent for full and complete disclosure of
. . . the records and recollections of attorneys
at law, or of other counsel, whether representing
[him] or another person in any case, either
criminal or civil, in which [he] presently [has]
or [has] had an interest." Denius argues that the
intent and effect of this section of the
Authorization is to require him to waive his
attorney-client privilege and allow the state
access to all information that would otherwise be
protected by this doctrine. Denius contends that
this compelled waiver violates his constitutional
rights under the First and Sixth Amendments as
applied to the states through the Fourteenth
Amendment. See, e.g., Gideon v. Wainwright, 372
U.S. 335 (1963); Edwards v. South Carolina, 372
U.S. 229 (1963).
Under the doctrine of attorney-client privilege,
confidential communications between a client and
an attorney for the purpose of obtaining legal
advice are privileged. A court cannot compel
revelation of these communications through
discovery or testimony in civil or criminal
matters. This doctrine is a common law privilege
that can be explicitly or implicitly waived by
the client and is subject to a number of
restrictions and exceptions. The privilege is
implicitly waived if the client communicates
information to his attorney without the intent
that that information remain confidential. See
generally Moore’s Federal Practice 3d sec. 26.49;
Weinstein’s Federal Evidence 2d ch. 503.
In this case, we agree that Denius has been
asked to waive his privilege of confidentiality
regarding the information he communicates to an
attorney as a condition of employment with the
LCP. If Denius were to sign the Authorization,
all previously protected communications with his
attorney would no longer be privileged.
Furthermore, the Authorization may jeopardize the
attorney-client privilege for all future
communications. Because these communications
would be made with the knowledge that Denius has
given consent for his attorney to transmit the
information to the LCD, they are no longer
confidential and, therefore, not protected by the
privilege. See Weinstein’s Federal Evidence sec.
503.15(2); United States v. Lawless, 709 F.2d
485, 487 (7th Cir. 1983) ("When information is
transmitted to an attorney with the intent that
the information will be transmitted to a third
party . . . , such information is not
confidential.")./4
We now consider whether this mandatory waiver
of the attorney-client privilege violates
Denius’s constitutional rights. Denius contends
that the attorney-client privilege implicates his
right to counsel under the Sixth Amendment as
well as his rights of free speech, association
and petition under the First Amendment. We
address each of these arguments in turn.
a. Sixth Amendment
The Authorization includes the release of
information related to all legal matters "either
civil or criminal." Where the Sixth Amendment
right to the effective assistance of counsel
attaches, this right includes the ability to
speak candidly and confidentially with counsel
free from unreasonable government interference.
See Adams v. Carlson, 488 F.2d 619, 630-31 (7th
Cir. 1973) (recognizing confidentiality in the
attorney-client relationship as an essential
component of the Sixth Amendment right to
effective assistance of counsel); cf. Weatherford
v. Bursey, 429 U.S. 545, 552 (1977) (recognizing
that state interference with confidential
attorney-client communications implicates a
defendant’s Sixth Amendment right to effective
assistance of counsel and may in some
circumstances require the reversal of a
conviction). However, an individual enjoys no
protection provided by the Sixth Amendment until
the instigation of criminal proceedings against
him. See McNeil v. Wisconsin, 501 U.S. 171, 175
(1991); Hannah v. Larche, 363 U.S. 420, 440 n.16
(1960). As Denius has at no time been the subject
of a criminal prosecution, his Sixth Amendment
rights are not implicated./5
b. First Amendment
Denius next contends that requiring him to sign
the Authorization and waive his attorney-client
privilege as a condition of employment violates
his First Amendment rights of speech, association
and petition.
The right to hire and consult an attorney is
protected by the First Amendment’s guarantee of
freedom of speech, association and petition. See
DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir.
1990) ("The right to retain and consult an
attorney . . . implicates not only the Sixth
Amendment but also clearly established First
Amendment rights of association and free
speech."); Martin v. Lauer, 686 F.2d 24, 32 (D.C.
Cir. 1982). It has long been recognized that the
First Amendment prohibits the state from
interfering with collective action by individuals
to seek legal advice and retain legal counsel.
See United Transp. Union v. State Bar of Mich.,
401 U.S. 576, 585-86 (1971) ("[C]ollective
activity undertaken to obtain meaningful access
to the courts is a fundamental right within the
protection of the First Amendment."); United Mine
Workers of Am. v. Illinois State Bar Ass’n, 389
U.S. 217, 221-22 (1967) ("[T]he freedom of
speech, assembly, and petition guaranteed by the
First and Fourteenth Amendments gives petitioner
the right to hire attorneys on a salary basis to
assist its members in the assertion of their
legal rights."); see also Brotherhood of R.R.
Trainmen v. Virginia, 377 U.S. 1, 6 (1964); NAACP
v. Button, 371 U.S. 415, 429-30 (1963). Likewise,
the state cannot impede an individual’s ability
to consult with counsel on legal matters. See
Bates v. State Bar of Ariz., 433 U.S. 350, 376
n.32 (1977) ("Underlying [the collective action
cases] was the Court’s concern that the aggrieved
receive information regarding their legal rights
and the means of effectuating them. This concern
applies with at least as much force to aggrieved
individuals as it does to groups."); see also
Trainmen, 377 U.S. at 7 ("A State could not . .
. infringe in any way the right of individuals
and the public to be fairly represented in
lawsuits . . . ."). Furthermore, the right to
obtain legal advice does not depend on the
purpose for which the advice is sought. This
right applies equally to legal representation
intended to advocate a political or social
belief, see Button, 371 U.S. at 419-20, or to
recover damages in a personal injury suit, see
United Mine Workers, 389 U.S. at 223. See also
id. (stating that in earlier cases "we rejected
the contention . . . that the principles
announced in Button were applicable only to
litigation for political purposes"). In sum, the
First Amendment protects the right of an
individual or group to consult with an attorney
on any legal matter.
The ability to maintain confidentiality in
attorney-client communications is an important
component of the right to obtain legal advice.
"[T]he right to confer with counsel would be
hollow if those consulting counsel could not
speak freely about their legal problems." Martin,
686 F.2d at 32. The centrality of confidentiality
to the effective rendering of legal advice is
reflected in the long-standing common law
privilege for attorney-client communications. See
Swidler & Berlin v. United States, 524 U.S. 399,
403 (1998). This privilege not only protects the
interest of the client in receiving the best
legal advice but also "’promote[s] broader public
interests in the observance of law and the
administration of justice.’" Id. (quoting Upjohn
Co. v. United States, 449 U.S. 383, 389 (1981)).
Because the maintenance of confidentiality in
attorney-client communications is vital to the
ability of an attorney to effectively counsel her
client, interference with this confidentiality
impedes the client’s First Amendment right to
obtain legal advice.
The First Amendment may be implicated where the
state compels an individual to speak. If by
compelling an individual to reveal information
that he would rather keep confidential the state
chills the individual’s ability to engage in
protected speech, the state has infringed the
individual’s First Amendment right in the
protected speech, unless it provides a sufficient
justification for the required disclosure. See
McIntyre v. Ohio Elections Comm., 514 U.S. 334,
341-42 (1994); NAACP v. Alabama ex rel.
Patterson, 357 U.S. 449, 462-63 (1958). The level
of justification required by the state will vary
depending on the nature of the speech involved.
See McIntyre, 514 U.S. at 347.
In this case, Denius alleges that the state is
compelling the revelation of information he would
prefer to keep confidential by requiring him to
waive his attorney-client privilege. He argues
that this compelled revelation of confidential
communications chills the protected speech
involved in his consultation with an attorney on
legal matters. At this stage of the proceedings,
Dunlap has offered no reason for requiring that
Denius waive his attorney-client privilege.
Therefore, we need not decide and do not address
the level of justification required for the state
to overcome an individual’s right to maintain
confidentiality in his legal communications with
his attorney. We merely conclude that absent
appropriate justification the state cannot compel
the revelation of privileged attorney-client
communications. Therefore, if the LCP had no
basis for requiring Denius to reveal confidential
attorney-client communications, Dunlap violated
Denius’s First Amendment rights when he refused
to renew Denius’s contract solely because Denius
declined to waive his attorney-client privilege.
However, the parameters of an individual’s First
Amendment right to confidential communications
with his attorney were not clearly defined before
this incident occurred. There is no existing
Supreme Court or Seventh Circuit precedent on
this issue, and we are only able to find two
cases from fellow circuit courts articulating
this right. See DeLoach v. Bevers, 922 F.2d 618,
620 (10th Cir. 1990); Martin v. Lauer, 686 F.2d
24 (D.C. Cir. 1982). These two cases do not
represent a trend in the law that would
inevitably lead to the result we announce here.
Similarly, the constitutional dimensions of the
attorney-client privilege are not so patently
obvious that no existing case law is required to
show the right is clearly established. Therefore,
we also hold that Dunlap is shielded by qualified
immunity for any possible violation of Denius’s
First Amendment right to confidential
communications with his attorney, and we affirm
the district court’s grant of summary judgment to
the defendant on this issue.
4. Other disclosures
In addition to requiring that Denius waive his
attorney-client privilege, the Authorization also
permits the release of other confidential
information including all records pertaining to:
1) educational, 2) financial, 3)
military/veterans, 4) criminal, or 5) employment
matters./6 Again, the LCD proffers no
justification at this stage for requiring
disclosure of this broad range of information.
Denius contends that requiring him to authorize
these disclosures violates his right to privacy
in confidential information.
The "concept of ordered liberty" protected by
the Fourteenth Amendment’s Due Process Clause has
been interpreted to include "the individual
interest in avoiding disclosure of personal
matters." Whalen v. Roe, 429 U.S. 589, 599-600
(1977); see also Nixon v. Administrator of
General Servs., 433 U.S. 425, 465 (1977)
(recognizing "a legitimate expectation of privacy
in [ ] personal communications"); Pesce v. J.
Sterling Morton High Sch., 830 F.2d 789, 795 (7th
Cir. 1987) ("The federal constitution does, of
course, protect certain rights of privacy
including a right of confidentiality in certain
types of information."). This Court has
recognized that "the federal right of
confidentiality might in some circumstances be
implicated when a state conditions continued
employment on the disclosure of private
information." Pesce, 830 F.2d at 797.
However, the scope and contours of this right
have not been defined in this Circuit. For
example, it is not clear whether the right of
confidentiality covers all confidential
information or only confidential information
relating to certain matters. In this Circuit, the
right clearly covers medical records and
communications. See Anderson v. Romero, 72 F.3d
518, 522 (7th Cir. 1995) (noting the recognition
of this right as early as 1992); Schaill v.
Tippecanoe County Sch. Corp., 864 F.2d 1309, 1322
n.19 (7th Cir. 1989) (recognizing "a substantial
privacy interest in the confidentiality of
medical information"). But, it is not clear
whether other confidential information, such as
that contained in financial records, also
receives similar protection under this right.
Furthermore, while it is apparent that some form
of balancing test would be used to determine when
this right of confidentiality has been violated,
that test has not been defined in this Circuit.
See Pesce, 830 F.2d at 797 n.5 (noting that other
courts have used either a "general balancing of
interests" or strict scrutiny when addressing
this right, and declining to define a test for
use in this Circuit); see also Fraternal Order of
Police v. City of Philadelphia, 812 F.2d 105, 110
(3d Cir. 1987) (noting that the majority of
circuits have adopted intermediate scrutiny for
required disclosures of confidential information
and that some circuits have employed a compelling
interest test where the intrusion was
particularly egregious); cf. Nixon, 433 U.S. at
465 (balancing interests); Whalen, 429 U.S. at
601-04 (same)./7
Denius argues that it is clearly established
that the state could not require the release of
confidential information without at least some
interest to place in the balance and some
measures limiting the use of the information and
protecting it from further disclosure. Although
Denius alludes in his brief to the
Authorization’s effect on his privacy rights in
a broad range of confidential information, he
only discusses with specificity his interest in
medical and financial information. Therefore, we
address his privacy argument with respect to
these two types of information alone. See Gagan
v. American Cablevision, Inc., 77 F.3d 951, 965
(7th Cir. 1996) (holding that failure to
adequately develop an argument on appeal
constitutes waiver).
a. Medical Information
As discussed above, this Circuit has outlined a
clearly established "substantial" right in the
confidentiality of medical information that can
only be overcome by a sufficiently strong state
interest. See Anderson, 72 F.3d at 522.
Therefore, to the extent that the Authorization
provided for the release of medical records or
communications,/8 Dunlap was on notice that this
type of information has constitutional protection
in this Circuit and that the state cannot require
its disclosure without a sufficient
countervailing interest. As Dunlap has provided
no interest at this stage in the proceedings that
would justify requiring Denius to supply this
information, we find he has not shown that he is
entitled to qualified immunity on this issue. See
Gustafson v. Jones, 117 F.3d 1015, 1021 (7th Cir.
1997) (recognizing that balancing tests "produce
a wide gray area between the clearly legal and
the clearly illegal . . . . This does not mean,
however, that legal certainty never exists when
the law demands the consideration of a number of
different factors."). We thus reverse the
district court’s grant of summary judgment to the
defendant on this issue and remand for further
proceedings.
b. Financial Information
While this Court has concluded that there is a
general federal constitutional right of
confidentiality, we have discussed this right
only in the context of confidential medical
information. See Anderson, 72 F.3d 518; Schaill,
864 F.2d at 1322 n.19; Pesce, 830 F.2d 789.
Denius now urges us to find that the right of
confidentiality applies to confidential financial
information.
Seven of our sister circuits have found that
the constitutional right of privacy in
confidential information covers some financial
disclosures. See Sheets v. Salt Lake County, 45
F.3d 1383, 1388 (10th Cir. 1995) (finding a
constitutionally protected privacy interest in
matters concerning "marriage, finances, and
business"); Doe v. City of New York, 15 F.3d 264,
267 (2d Cir. 1994) (recognizing a
constitutionally protected privacy interest in
financial information); Alexander v. Peffer, 993
F.2d 1348 (8th Cir. 1993) (recognizing a
constitutionally protected privacy interest in
"highly personal medical or financial
information"); Walls v. City of Petersburg, 895
F.2d 188, 194 (4th Cir. 1990) (same); Fraternal
Order of Police v. City of Philadelphia, 812 F.2d
105, 115 (3d Cir. 1987) (same); Plante v.
Gonzalez, 575 F.2d 1119, 1135 (5th Cir. 1978)
(recognizing a "substantial" privacy interest in
confidential financial information); see also
James v. City of Douglas, 941 F.2d 1539, 1543 n.7
(11th Cir. 1991) (recognizing Fifth Circuit
precedent in this area finding a right to privacy
in confidential financial information as
binding). The only circuit to explicitly disavow
such a right, and the right of confidentiality in
general, is the Sixth Circuit. See J.P. v.
DeSanti, 653 F.2d 1080, 1090 (6th Cir. 1981)
(finding that no right of confidentiality exists
under the federal constitution); Cushall v.
Sundquist, 193 F.3d 466, 481 (6th Cir. 1999)
(recognizing the continued vitality of the
DeSanti decision). However, we explicitly
recognized our disagreement with the Sixth
Circuit’s approach in Anderson where we agreed
with the majority of circuits that Whalen and
Nixon delineate a federal right of
confidentiality. 72 F.3d at 522./9
The Supreme Court has discussed the existence
and extent of constitutional protection for
confidential information in terms of the type of
information involved and the reasonable
expectation that that information would remain
confidential. Nixon, 433 U.S. at 465; see also
Whalen, 429 U.S. at 604. Following this logic, we
held that medical information may be a form of
protected confidential information because of its
intimate and personal nature. See Anderson, 72
F.3d at 522; Pesce, 830 F.2d at 797. Our fellow
circuit courts have applied similar reasoning to
determine whether information may receive
protection under the confidentiality branch of
the right to privacy. See In re Crawford, 194
F.3d at 959; Doe, 15 F.3d at 267; Walls, 895 F.2d
at 192, 194; Westinghouse, 638 F.2d at 579;
Plante, 575 F.2d at 1134-35. Because confidential
financial information may implicate substantial
privacy concerns and impact other fundamental
rights, we agree with the overwhelming majority
of our sister circuits that some types of
financial information involve the degree and kind
of confidentiality that is entitled to a measure
of protection under the federal constitutional
right of privacy.
In this case, the plaintiff has identified no
specific financial information that he claims
deserves constitutional protection. However, the
Authorization provides for the release of a
virtually limitless range of confidential
financial information. Furthermore, the LCD has
provided no basis for requiring this information
and no explanation for how it would tailor the
gathering of the information to any need it might
proffer. Most importantly, the LCD has provided
no guarantee that the information obtained
pursuant to the Authorization would be kept
confidential and only used for a legitimate
government purpose. We conclude that this
sweeping disclosure requirement, lacking any
safeguards against misuse or further disclosure,
and supported by no justification, infringes
Denius’s right of privacy in confidential
information.
That some forms of confidential financial
information may fall within the scope of the
right of privacy was not clear in this Circuit at
the time Dunlap made his decision not to renew
Denius’s contract. While there was a trend among
the majority of circuits in this direction, the
conclusion was not unanimous. Therefore, we do
not find that the law in this area was so clearly
defined that a government official can be charged
with its knowledge. We conclude that Dunlap is
shielded by qualified immunity for requiring
Denius to disclose confidential financial
information as a condition of employment, and we
affirm the district court’s grant of summary
judgment to the defendant on this issue./10
C. Equitable Relief
Denius next argues that the district court
erred as a matter of law when it dismissed his
claims for equitable relief as barred by the
defendant’s qualified immunity.
1. Waiver
The defendant contends that Denius waived his
right to appeal this issue because the district
court’s dismissal of Denius’s claims for
equitable relief was an oversight and not a legal
judgment. The defendant asserts that Denius was
required to file a Rule 60(b) Motion for Relief
from Judgment calling the district court’s
attention to this oversight and requesting its
correction. The defendant argues that by failing
to make a Rule 60(b) motion, Denius waived his
ability to raise this argument on appeal.
The defendant is correct that where a plaintiff
is seeking relief from judgment that is most
appropriately awarded by a trial court on a Rule
60 motion, such as where the plaintiff is
claiming oversight, mistake or clerical error,
the plaintiff may waive his right to present that
type of argument on appeal if he did not make the
appropriate Rule 60 motion below. See Chicago
Downs Ass’n, Inc. v. Chase, 944 F.2d 366, 370-71
(7th Cir. 1991) (finding that where plaintiff’s
only argument on appeal was that the district
court’s judgment was inequitable because of
attorney neglect, plaintiff waived this Rule
60(b)-type argument on appeal because he failed
to make the appropriate motion below); see also
Securities and Exchange Comm’n v. Mayhew, 121
F.3d 44, 53-54 (2d Cir. 1997). However, in this
case, Denius is not contending that the district
court overlooked his claim for declaratory and
injunctive relief or issued a mistaken judgment
for any of the reasons that would properly be
corrected by a Rule 60 motion. Rather, he claims
that the district court was fully aware of his
claims for both equitable and monetary relief but
erroneously concluded that qualified immunity was
a bar to claims in both law and equity.
We agree with Denius’s interpretation of the
district court’s ruling. This is not a case where
the district court completely overlooked
plaintiff’s claims for equitable relief. The
district court clearly states that it is
disposing of Denius’s claims for monetary and
equitable relief through its summary judgment
opinion. In addition, the district court did not
limit its discussion of qualified immunity solely
to Denius’s claims for monetary relief but
applied that doctrine to all of Denius’s claims.
Furthermore, oral argument before the trial court
pertaining to the motion for summary judgment
clearly indicates that the district court was
aware of, and took into consideration, Denius’s
claims for equitable as well as monetary relief.
Denius appealed the district court’s conclusion
of law on this matter directly to this Court, and
it was proper for him to do so. While he may have
filed a Rule 60(b) motion asking the district
court to reconsider this conclusion of law, he
was not required to do so, and he has not waived
any of his arguments related to this matter on
appeal. See Meinecke v. H & R Block of Houston,
66 F.3d 77, 82 n.2 (5th Cir. 1995) ("[I]t has
never been the case that a Rule 60(b) motion must
be filed as a prerequisite to appeal.").
2. Denius’s Equitable Claims
The doctrine of qualified immunity does not
apply to claims for equitable relief. See Burgess
v. Lowery, 2000 WL 30073, *1 (7th Cir. Jan. 18,
2000) ("There is no immunity from a suit for
[equitable] relief."); Eberhardt v. O’Malley, 17
F.3d 1023, 1028 (7th Cir. 1994) (finding
qualified immunity "irrelevant to the plaintiff’s
request for an order that he be reinstated"); see
also Wood v. Strickland, 420 U.S. 308, 314 n.6
(1975) (stating that "immunity from damages does
not ordinarily bar equitable relief as well").
Therefore, we hold that the district court erred
in concluding that the defendants in this case
are shielded from all liability for their actions
under the qualified immunity doctrine. As
discussed above, Denius has a First Amendment
right in confidential communications with his
attorney and a Fourteenth Amendment right in
maintaining the confidentiality of some medical
and financial information. These rights are
subject to a balancing of interests to determine
whether the state has violated them. On the
present record, the defendant has presented no
justification for the burden he has placed on
these rights by conditioning Denius’s employment
on relinquishing them, and he is not entitled to
prevail on summary judgment. Therefore, we
reverse the district court’s grant of summary
judgment to the defendant on Denius’s claims for
equitable relief and remand these claims for
further proceedings.
III. CONCLUSION
For the reasons stated above, we Affirm the
district court’s grant of summary judgment to the
defendants on plaintiff’s claims for monetary
relief on the First Amendment attorney-client
privilege and Fourteenth Amendment financial
privacy claims; we Reverse the district court’s
grant of summary judgment in favor of the
defendants on plaintiff’s claim for monetary
relief on the Fourteenth Amendment medical
privacy claim as well as plaintiff’s claims for
equitable relief; and we Remand this case to the
district court for further proceedings consistent
with this opinion.
/1 Pursuant to Fed. R. App. Pro. 43(c)(2), we have
added Gary Sadler, the current Director of the
Lincoln Challenge Program, as a party to this
action which involves claims for prospective
injunctive relief as well as monetary damages.
However, for purposes of our discussion we will
refer to Dunlap as the defendant in this matter.
/2 The only justification revealed on the record
relates to the LCP’s need for information
concerning the criminal background of its
teachers. Denius has not objected to providing
this information and, indeed, has signed a
consent form without any time limit authorizing
the disclosure of information regarding his
criminal history. The record does not reveal any
justification for requiring the additional
information in the 1996 Authorization that is the
subject of this appeal.
/3 It is irrelevant to our analysis that Dunlap did
not fire Denius but refused to renew his
contract, since Denius alleges that this decision
was made solely because he chose to exercise his
constitutional rights. See Mt. Healthy, 429 U.S.
at 283 (holding that a plaintiff whose contract
was not renewed "may nonetheless establish a
claim to reinstatement if the decision not to
rehire him was made by reason of his exercise of
constitutionally protected First Amendment
freedoms").
/4 The defendant contends that Denius does not have
standing to raise a constitutional claim
regarding the attorney-client privilege because
he was not involved in any past or present legal
matters at the time he was required to sign the
release. However, this fact is not determinative
of Denius’s standing in this case. In Shelton v.
Tucker, 364 U.S. 479 (1960), and Keyishian v.
Board of Regents, 385 U.S. 589 (1967), the
Supreme Court held that requiring a teacher to
reveal his associational memberships as a
condition of public employment was an
unconstitutional burden on the teacher’s exercise
of his First Amendment rights. The holdings in
these cases rest on the proposition that First
Amendment activity may be unreasonably chilled
when public employees are forced to choose
between revealing protected activities to their
employer or keeping their jobs. See Keyishian,
385 U.S. at 601-04; Shelton, 364 U.S. at 485-88;
cf. NAACP v. Alabama ex rel. Patterson, 357 U.S.
449, 462 (1958). As with the associational rights
in those cases, the First Amendment right in this
case--the right to seek counsel from an attorney-
-is arguably impaired by a requirement that
attorney-client communications be made available
to a public employer. We are particularly
concerned with a potential chilling effect in
this context because in certain cases it is only
through the aid of an attorney that an individual
is able to determine what his rights are and how
to give them effect. In neither Shelton nor
Keyishian were the plaintiff teachers required to
show that they were actually chilled from
associating with particular groups or persons
because of the challenged regulations. Rather,
the plaintiffs alleged that they refused to
comply with the regulations requiring disclosure
of associational membership and were fired
because of this refusal. Likewise, because Denius
alleges that he was required to chose between
signing a release that would potentially curtail
an important First Amendment activity and keeping
his job, we find that he has standing to assert
a First Amendment claim.
/5 The fact that the Authorization may affect future
communications does not alter this result with
respect to the Sixth Amendment. Contrary to the
First Amendment context, an individual cannot
assert a claim based on a future violation of his
Sixth Amendment rights. Those rights may only be
vindicated once they have attached. See McNeil,
501 U.S. at 176.
/6 To the extent that the Authorization duplicates
the release of criminal and educational records
that Denius signed when he first began working at
LCD, he does not contest its validity. It is only
the disclosure of information above and beyond
that necessary to perform such a routine
background check that is the subject of this
appeal.
/7 In Whalen, the Supreme Court balanced the
following factors: 1) the potential for public
disclosure of the information; 2) the extent to
which the private information is already
disclosed to other individuals or institutions;
3) the similarity of the disclosure in question
to disclosures that have already taken place; 4)
the potential deterrent effect on the exercise of
other constitutional liberties; and 5) the
state’s interest in the information. 429 U.S. at
601-04.
In Nixon, the factors considered were: 1) the
extent of the intrusion into the individual’s
privacy; 2) the individual’s status as a public
figure; 3) the expectation of privacy in the
materials in question; 4) the importance of the
public interest; 5) the level of difficulty
involved in segregating private from non-private
materials; and 6) the measures taken to keep
private materials from being publicly
disseminated or revealed. 433 U.S. at 465.
A number of our sister circuits have adopted a
variation of the balancing test articulated by
the Third Circuit that includes: 1) "the type of
record requested"; 2) "the information it does or
might contain"; 3) "the potential for harm in any
subsequent nonconsensual disclosure"; 4) "the
injury from disclosure to the relationship in
which the record was generated"; 5) "the adequacy
of safeguards to prevent unauthorized
disclosure"; 6) "the degree of need for access";
7) "whether there is an express statutory
mandate, articulated public policy, or other
recognizable public interest militating toward
access." United States v. Westinghouse Elec.
Corp., 638 F.2d 570, 578 (3d Cir. 1980); see In
re Crawford, 194 F.3d 954, 959 (9th Cir. 1999).
/8 The present record does not reveal whether the
Authorization extends to medical records or
communications as Denius alleges. We leave this
factual determination to be resolved by the
district court.
/9 The District of Columbia Circuit has recently
expressed "grave doubts" as to the existence of
a federal right of confidentiality. See American
Fed’n of Gov’t Employees v. Department of Hous.
& Urban Dev., 118 F.3d 786, 791 (D.C. Cir. 1997).
However, that circuit recognized that it did not
"write on a blank slate" and that the circuit’s
earlier decisions indicated the existence of such
a right. Id. at 791-92. Similarly, the First
Circuit has expressed concern regarding the
contours of this right but has declined to
address the issue. See Borucki v. Ryan, 827 F.2d
836 (1st Cir. 1987).
/10 The Authorization also includes a release of
liability to all persons giving information to
the LCP pursuant to the Authorization and to the
LCP for any liability incurred as a result of
gathering this information. Denius contends that
requiring him to release these potential legal
claims interferes with his right of access to the
courts and his property right in legal causes of
action.
We have searched the record presented on appeal
and can find no evidence that Denius raised
either of these claims before the district court.
We have repeatedly held that "[a]n issue not
presented in the court below cannot be raised for
the first time on appeal and form a basis for
reversal." Weeks v. Samsung Heavy Indus. Co.,
Ltd., 126 F.3d 926, 942 (7th Cir. 1997)
(citations omitted). Therefore, we consider these
issues waived and do not address them at this
time.