holding that because Leather-man "did not address heightened pleading in individual capacity suits, our precedent requiring that standard in such suits remains the governing law of this circuit”
How later courts described this case
- holding that because Leather-man "did not address heightened pleading in individual capacity suits, our precedent requiring that standard in such suits remains the governing law of this circuit”
- providing that hearsay in newspaper articles “cannot defeat a summary judgment motion”
- adopting fact-pleading requirements, inconsistent with this circuit’s position in Elliott v. Thomas, 937 F.2d 338, 345 (7th Cir.1991), for constitutional tort litigation
- "While it is not necessary *58 that ‘the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment,' Celotex, 477 U.S. at 325, 106 S.Ct. at 2553, ‘normally’ hearsay ‘would not be enough to raise an issue of fact for summary judgment purposes(citation omitted).
Written by the judges who cited it.
The opinion
STEPHEN F. WILLIAMS, Circuit Judge,
concurring:
I concur in the opinion of the court. When a plaintiff claims that an official enjoying qualified immunity has committed a constitutional tort involving motive, circuit precedent requires the plaintiff to proffer “direct” (as opposed to circumstantial) evidence of the illicit motive before obtaining discovery against the official. See Maj. Op. at 793-95; Siegert v. Gilley, 895 F.2d 797, 802 (D.C.Cir.1990), aff'd on other grounds, 500 U.S. 226 , 111 S.Ct. 1789 , 114 L.Ed.2d 277 (1991); Whitacre v. Davey, 890 F.2d 1168 , 1171 & n. 4 (D.C.Cir.1989). Plaintiffs here have not met that standard. Maj. Op. at 796-98.
This is not to say that circuit law is correct. The restriction arose out of an effort to reconcile conflicting goals: to protect officials with qualified immunity from undue litigation burdens and to afford legal remedies for citizens whose rights may have been abused. Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982), had framed the qualified immunity test in objective terms precisely because a rule that sheltered an official only after he had incurred the burdens of discovery into his motivation—a highly subjective issue — would be pretty flimsy shelter. Id., at 814-19 , 102 S.Ct. at 2736-39 ; see also Elliott v. Thomas, 937 F.2d 338, 344 (7th Cir.1991). In adopting the “direct” evidence rule for constitutional torts involving motive, we reasoned that Harlow logically required an especially high threshold showing of unconstitutional motive before defendant should be exposed to discovery. Whitacre, 890 F.2d at 1171 .
The distinction between direct and circumstantial evidence, however, appears completely arbitrary and unrelated to the strength of the plaintiffs case. As Judge Easterbrook pointed out in Elliott , the requirement would be fatal except in the rare ease of the defendant’s confession. 937 F.2d at 345 . At the same time, while a perjured claim of having heard such a confession would meet the test, a massive circumstantial case would not. And, speaking for the Ninth Circuit, Judge Hall noted that evidence of the defendant’s intent was likely to be peculiarly under his control. Branch v. Tunnell, 937 F.2d 1382, 1386-87 (9th Cir.1991). It is hardly surprising that the only circuits to consider our direct evidence rule have rejected it. Elliott; Branch. Both circuits concluded that it was enough for plaintiff to put forward specific, non-conclusory allegations, Elliott, 937 F.2d at 344-45 ; Branch, 937 F.2d at 1387 , which we require even in cases having nothing to do with motive, see Andrews v. Wilkins, 934 F.2d 1267, 1269-70 (D.C.Cir.1991); Hunter v. District of Columbia, 943 F.2d 69, 76-77 (D.C.Cir.1991).
The simple requirement of specific, non-eonelusory allegations may not be the only reasonable alternative to Seigert. Doubtless recognizing the vulnerability of the direct evidence rule, the Justice Department here argued a fallback position. A plaintiff could get to discovery only by making a showing of illicit intent so strong that, if the specific facts alleged were accepted as true, any reasonable jury would have to infer illicit motive. (Discovery and ultimately trial would of course be necessary to determine whether the specific allegations were true.) Appellant’s Brief at 30-32. The proposal bears some resemblance to a test devised for cases where plaintiff claimed that officials with qualified immunity had conducted electronic surveillance, with lawfulness turning on whether they had done so for national security purposes. Halperin v. Kissinger, 807 F.2d 180, 184-85 (D.C.Cir.1986). There we said defendants’ summary judgment motion should be granted if they “adduce[d] sufficient facts that no reasonable jury, looking at the evidence in the light most favorable to ... plaintiffs, could conclude that it was objectively unreasonable for the defendants to be acting for national security reasons”. Id., at 189 ; see also id., at 188 (immunity defense prevails “if the facts establish that the purported national security motivation would *799 have been reasonable”). The rule proposed by the appellants seems more stringent than the one we adopted for a situation that combined inquiry into motive with national security concerns, so it may be logically unsustainable. If the direct evidence rule is reexamined en banc, however, the reconsideration should encompass alternatives.