Appendix — Crawford-El v. Britton

GQ eoriLieDd

96 827 NOV 251996.

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

LEONARD ROLLON CRAWFORD-EL,

Petitioner,

PATRICIA BRITTON,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

DANIEL M. SCHEMBER

GAFFNEY & SCHEMBER, P.C.

1666 Connecticut Avenue, N.W.

Suite 225

Washington, D.C. 20009

(202) 328-2244

November 25, 1996 Counsel of Record for Petitioner

Washington, 0.C. * THIEL PRESS + (202) 328-3286

TABLE OF CONTENTS

A Opinions of the En Banc Court of Appeals

August 27, 1996 (remanding First

Amendment retaliation claim against

Britton) la

Opinion for the court (Williams, J.)

(holding that qualified immunity doctrine

requires "clear and convincing"evidence of

unconstitutional motive, presented

prior to discovery, and rejecting "direct

evidence" rule) 2a

Concurring opinion (Silberman, J.) 35a

Concurring opinion (Ginsburg, J.) 58a

Concurring opinion (Henderson, J.) 72a

Opinion concurring in judgment to

remand (Edwards, C.J., with whom Wald,

Randolph, Rogers, and Tatel, JJ., concur)

(rejecting both "clear and convincing"

evidence and "direct evidence" requirements) 78a

B Judgment and Memorandum of Court of

Appeals August 28, 1996 (Edwards, C.J.,

Wald and Randolph, JJ.) (remanding First

Amendment retaliation claim against District

of Columbia) 96a

Judgment and Memorandum of Court of

Appeals November 28, 1995 (Edwards, C.J.,

Wald and Randolph, JJ.) (affirming dismissal

of all claims except First Amendment retaliation

claims against Britton and District of Columbia)

Order of the En Banc Court of Appeals

November 28, 1995 (ordering en banc

review of First Amendment retaliation

claim against Britton)

District Court Memorandum Opinion and

Order August 31, 1994 (Lamberth, J.)

(denying reconsideration of dismissal of

Fourth Amended Complaint)

District Court Memorandum Opinion

February 15, 1994 (Lamberth, J.)

(dismissing Fourth Amended Complaint, but

finding First Amendment retaliation claim

valid except for failure to present "direct

evidence" of unconstitutional motive)

District Court Order February 15, 1994

(Lamberth, J.) (dismissing Fourth Amended

Complaint)

Supreme Court Order October 5, 1992

(denying petition for writ of certiorari after

first appeal concerning right of court access

claim)

107a

110a

115a

142a

144a

Opinion by Court of Appeals December 27,

1991 (Williams, J., joined by Buckley, J. and

Lourie, J., sitting by designation) (reversing on

Britton’s interlocutory appeal district court's

refusal to dismiss right of court access claim)

District Court Order May 10, 1990

(Lamberth, J.) (denying Britton’s motion

to dismiss)

District Court Order August 31, 1990

(Lamberth, J.) (granting Britton's motion

for reconsideration)

District Court Order December 21, 1990

(Lamberth, J.) (denying Britton’s motion

to dismiss second amended complaint)

Order by Court of Appeals February |4,

1992 ( Buckley, Williams, and Lourie, JJ )

(denying petition for rehearing in first

appeal)

Fourth Amended Complaint

145a

l6la

163a

168a

er

APPENDIX A

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 20, 1996 Decided August 27, 1996

No. 94-7203

LEONARD ROLLON CRAWFORD-EL,

APPELLANT

Vv.

PATRICIA BRITTON AND THE DISTRICT OF COLUMBIA,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 89cv03076)

Daniel M. Schember argued the cause and filed the briefs

for appellant.

Charles L. Reischel, Deputy Corporation Counsel, argued

the cause for appellees. With him on the brief were Charles

F. Ruff, Corporation Counsel, and Edward E. Schwab,

Assistant Corporation Counsel. Garland Pinkston, Jr.,

Principal Deputy Corporation Counsel and Erias A. Hyman,

Counsel, entered appearances.

2a

Stephen W. Preston, Deputy Assistant Attorney General,

United States Department of Justice, argued the cause for

amicus curiae the United States. With him on the brief were

Frank W. Hunger, Assistant Attorney General, Barbara L.

Herwig, Assistant Director, Robert M. Loeb, Attorney and

Eric H. Holder, Jr., United States Attorney.

Michael L. Martinez and William J. Dempster were on the

brief for amici curiae J. Michael Quinlan and Loye W. Miller,

Jr.

Arthur B. Spitzer was on the brief for amicus curiae

American Civil Liberties Union of the National Capital Area.

Before: EDWARDS, Chief Judge, WALD, SILBERMAN,

BUCKLEY, WILLIAMS, GINSBURG, SENTELLE, HENDERSON,

RANDOLPH, ROGERS and TATEL, Circuit Judges.

Opinion for the court filed by Circuit Judge WILLIAMS.

Concurring opinion filed by Circuit Judge SILBERMAN.

Concurring opinion filed by Circuit Judge GINSBURG.

Concurring opinion filed by Circuit Judge HENDERSON.

Opinion filed by Chief Judge EDWARDS, concurring in the

judgment to remand.

WILLIAMS, Circuit Judge: We decided to hear this case en

banc on our own initiative in order to resolve

disputes as to how a government official's assertion of

qualified immunity, as a defense to a damage action for a

constitutional tort, may affect pleading and

way 8 REE

official's act turns on his motive. Our inquiry is framed by the

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Cl i a th

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competing goals described by the Supreme Court in Harlow

v. Fitzgerald, 457 U.S. 800, 816-18 (1982)—vindicating

constitutional rights but at the same time protecting officials

from exposure to discovery and trial that would unduly chill

their readiness to exercise discretion in the public interest.

We here discard our former solution—a requirement that the

plaintiff allege "direct" evidence of unconstitutional motive.

See, e.g., Siegert v. Gilley, 895 F.2d 797 (D.C. Cir. 1990),

aff'd on other grounds, 500 U.S. 226 (1991). But we read

Harlow as calling for alternative rules to protect officials.

First, we think Harlow allows an official to get summary

judgment resolution of the qualified immunity issue, including

the question of the official's state of mind, before the plaintiff

has engaged in discovery on that issue. Second, we believe

that unless the plaintiff offers clear and convincing evidence

on the state-of-mind issue at summary judgment and trial,

judgment or directed verdict (as appropriate) should be

granted for the individual defendant.

Crawford-El is a prisoner in the District of Columbia's

correctional system serving a life sentence for murder. He

filed the present lawsuit in 1989, claiming that the individual

defendant, Patricia Britton, a D.C. correctional official, and

the District of Columbia had misdelivered boxes belonging to

him containing legal papers, clothes and other personal items,

thereby violating his constitutional right of access to the

courts. When Britton moved for dismissal and for summary

judgment on grounds of qualified immunity, the district court

denied the motion and Britton appealed. We reviewed

Crawford-El's allegations under a “heightened pleading"

requirement, insisting that the plaintiff in such a case advance

"nonconclusory allegations that are sufficiently precise to put

defendants on notice of the nature of the claim and enable

them to prepare a response and, where appropriate, a

summary judgment motion on qualified immunity grounds."

7

4a

Crawford-El v. Britton, 951 F.2d 1314, 1317 (D.C. Cir.

1991) (quotations omitted). By this standard we found his

pleading doctrine had become clearer in ways adverse to

plaintiff since his pleading, however, we remanded the case to

the district court in case that court, in its discretion, should

decide to permit repleading. /d. at 1322.

and Crawford-E] filed his Fourth Amended Complaint. There

he repleaded the access-to-courts claim, but without adding

material to fill the gap identified in our first opinion. He also

pleaded a due process claim. The district court dismissed

both claims, and a panel of this court affirmed. Crawford-El

v. Britton, No. 94-7203, mem. op. at 1-2 (D.C. Cir. Nov. 28,

1995). In addition, Crawford-El charged that the defendants’

alleged misdelivery of his belongings was in retaliation for

various feisty communications with the press and thus in

violation of the First Amendment. (This claim had initially

appeared in his briefing on the first round in this court. See

Crawford-El, 951 F.2d at 1716.) The district court granted

the defendants’ motion to dismiss the First Amendment claim

as well, saying that the complaint did not allege "direct"

evidence of unconstitutional motivation and citing Siegert v.

Gilley, 895 F.2d 797, 800-802 (D.C. Cir. 1990), aff'd on

pee opm 500 U.S. 226, 231 (1991), our court's most

emphatic statement of the "direct" evidence requirement.

Crawford-El v. Britton, No. 89-3076, mem. op. at 14-15

(D.D.C. Feb. 15, 1994). After affirming dismissal of the first

two claims, the panel suggested, and the court en banc

agreed, that the dismissal of the First Amendment retaliation

claim should be heard by the court en banc.!

Our order for rehearing en banc relates only to the qualified

immunity raised by plaintiff's action against Britton. But the

District of Columbia is, as noted in the text, still in the case.

a a ti

ee ll ee ee a ly ~

Sa

The background law on subjective motivation and qualified

immunity.

In Jarlow v. Fitzgerald the Court reformulated its test for

officials’ qualified immunity in constitutional tort actions. For

acts to which qualified immunity may apply,” it held that the

plaintiff can prevail only by showing not just that there was a

violation, but that defendant's acts violated "clearly

established statutory or constitutional rights of which a

reasonable person would have known." 457 U.S. at 818. It

thus excluded liability where there was a violation (but not of

a right so clearly established that a reasonable person would

The district court had dismissed it as a defendant, but since in

his successive amended complaints Crawford-El repeatedly

named the District as a defendant and the District did not

object, the district court held that the District had waived a

law-of-the-case argument and therefore reinstated it as

defendant. Crawford-El v. Britton, No. 89-3076, mem. op. at

1 n.1 (D.DC. Feb. 15, 1994). Because Crawford-El's claims

against the District do not concern the questions for which we

granted rehearing en banc, they are to be resolved by the

panel.

Another extant part of the complaint is a pendant District

law claim for conversion of Crawford-El's property. The

survival of this claim (in the federal courts) turns on whether,

after the remand ordered here, there is any federal claim to

which it may be appended.

2 The qualified immunity defense is unavailable for ministerial

acts, see Harlow, 457 U.S. at 816; see also Davis v. Scherer,

468 U.S. 183, 196 n.14 (1984), and unnecessary for acts for

which the officer enjoys absolute immunity, see Harlow, 457

U.S. at 807.

6a

have known of it) even when the official acted “with the

malicious intention to cause a deprivation of constitutional

rights or other injury." /d at 815 (quoting Wood yv.

Strickland, 420 U.S. 308, 322 (1975)).

The Court was quite explicit as to the purpose of its

change. It noted that claims against officers necessarily

included ones "against the innocent as well as the guilty,” and

that among the "social costs" of such suits were "the expenses

of litigation, the diversion of official energy from pressing

public issues, and the deterrence of able citizens from

acceptance of public office." /d. at 814. Last but not least, it

invoked Judge Hand's opinion in Gregoire v. Biddle, 177 F.2d

579 (2d Cir. 1949), which had argued that the fear of being

sued would "dampen the ardor of all but the most resolute, or

the most irresponsible [public officials], in the unflinching

discharge of their duties." 177 F.2d at 581 (quoted in

Harlow, 457 U.S. at 814). It saw the inclusion of liability

based on subjective malice as greatly increasing all these

costs. Because such liability opened up a wide field of

inquiry, often with "no clear end to the relevant evidence"

bearing on the official's “experiences, values, and emotions,"

and typically not susceptible of disposition by summary

judgment, its resolution was "peculiarly disruptive of effective

government." /d. at 816-17. Most notably for our purposes,

the Court underscored the burdensome character of discovery

flowing from such liability. See id. at 817 (speaking of the

"broad-ranging discovery" that would result from allowing

such claims); id. at 818 (speaking of the resulting

"broad-reaching discovery"). Moreover, the Court said, such

liability would thwart what had been its assumption in its

earlier definition of qualified immunity—that "[i]nsubstantial

lawsuits" would be quickly terminated." /d. at 814 (quoting

Butz v. Economou, 438 U.S. 478, 507-508 (1978)).

Accordingly the Court held that qualified immunity could be

penetrated only on a _ showing of objective

ee te.

ON et eee he

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7a

unreasonableness—the now familiar requirement of "clearly

established" rights. /d. at 818. Henceforth, "bare allegations

of malice should not suffice to subject government officials

either to the costs of trial or to the burdens of broad-reaching

discovery." /d. at 817-18. The Court later described Harlow

as having “purged qualified immunity doctrine of its

subjective components." Mitchell v. Forsyth, 472 U.S. 511,

517 (1985); see also Davis v. Scherer, 468 U.S. 183, 191

(1984).

In fact, under the decisions of every circuit court

addressing the matter, Harlow has not accomplished the

stated purpose. This circuit and others have understood

Harlow to allow inquiry into subjective motivation where an

otherwise constitutional act becomes unconstitutional only

when performed with some sort of forbidden motive (such as,

here, the claim that Britton's decisions routing Crawford-El's

parcels were driven by a desire to penalize his exercise of free

speech rights). See, e.g., Siegert v. Gilley, 895 F.2d at 800-

801; Whitacre v. Davey, 890 F.2d 1168, 1171 (D.C. Cir.

1989); Martin v. D.C. Metropolitan Police Dept., 812 F.2d

1425, 1431 (D.C. Cir. 1987); Gooden v. Howard County,

Ma., 954 F.2d 960, 969-70 (4th Cir. 1992) (en banc); Pueblo

Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642,

649 (10th Cir. 1988); Elliott v. Thomas, 937 F.2d 338, 344-

45 (7th Cir. 1991); Branch v. Tunneill, 14 F.3d 449, 452 (9th

Cir. 1994); cf. Halperin v. Kissinger, 807 F.2d 180, 186-87

(D.C. Cir. 1986) (noting this court's and others’ decisions to

allow unconstitutional motive claims in areas other than

national security). Even though it has entailed many of the

"social costs" of inquiry into subjective motivation stated in

Harlow, courts have concluded that the vindication of

constitutional rights calls for damages liability—often the only

device available for such vindication. Halperin, 807 F.2d at

186.

8a

In Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. 1984), we

recognized the problem, noting that a plaintiffs claim of

unconstitutional motive could easily lead to discovery and

trial, with no hope of success, and the “result would be

precisely the burden Harlow sought to prevent." Jd. at 29.

We decided that for claims of which unconstitutional intent

was an essential part, "nonconclusory allegations of evidence

of such intent must be present in a complaint for litigants to

proceed to discovery on the claim. The allegations on this

issue need not be extensive, but they will have to be

sufficiently precise to put defendants on notice of the nature

of the claim and enable them to prepare a response and,

where appropriate, a summary judgment motion on qualified

immunity grounds." Jd. This did not speak explicitly to the

issue of whether a plaintiff must surmount any particular

burden in order to secure discovery. But in Martin v. D.C.

Metropolitan Police we specifically took the view that the

substantive characteristics of cases involving qualified

immunity and unconstitutional motive required deviation from

garden-variety application of the Federal Rules of Civil

Procedure's liberal pleading and discovery rules. We quoted

at length and with evident approbation from a Fifth Circuit

decision:

What is a federal trial judge to do? One thing he may not

do: face it as just another lawsuit in which the notice

pleading’s liberal policy of F.R. Civ. P. 8 counts on pre-trial

discovery to ascertain the factual basis for the claim[.] ...

Allowing pretrial depositions, especially those taken

adversely of the government official to ferret all of his

actions and the reasons therefor .. would defeat and

frustrate the function and purpose of the ... immunity[.] ...

[U]se of liberal discovery to establish the basis of a claim is

directly at odds with the Court's direction in Harlow that

government officials entitled to immunity [are to] be freed

te cathe tac a ore

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hte me ont we a

9a

from the burdens, the stress, the anxieties and the

diversions of pretrial preparations.

Martin, $12 F.2d at 1437 (R.B. Ginsburg, J.) (quoting Elliott

v. Perez, 751 F.2d 1472, 1479 (Sth Cir. 1985)) (footnotes

omitted).

Our holding in Martin both imposed a “direct evidence"

requirement and related it to the problem of discovery. To

get to trial, we said, a plaintiff must produce "something more

than inferential or circumstantial support for his allegation of

unconstitutional motive. That is, some direct evidence [of

improper motivation] must be produced..." 812 F.2d at 1435

(emphasis added). But we formulated no explicit rule on

discovery. While we quoted Elliott's exhortation about

protecting officials from "the burdens, the stress, the anxieties

and the diversions of pretrial preparations," we also said that

a complete ban on plaintiffs discovery of defendant before

resolution of qualified immunity issues on summary judgment

might turn the prior decisions allowing plaintiffs to raise

claims of unconstitutional motive into an “empty gesture," id.

at 1437, and that we were “leaving some space for

discovery," id. We told district courts to employ "with

particular care and sensibility their large authority to exercise

control over discovery" in order to balance all the concerns

properly. /d. at 1436-373

3 Then-Judge Ginsburg later observed that in Martin the court

had "cut back allowable discovery severely, permitting only a

sharply limited, precisely defined line of inquiry, and even

then, only because of special exigencies in the particular

case." Bartlett v. Bowen, 824 F.2d 1240, 1245 (D.C. Cir.

1987) (R.B. Ginsburg, J., concurring in denial of rehearing en

banc in Martin and several other cases).

10a

In Whitacre v. Davey we read Martin to require allegations

of direct evidence of unconstitutional motive to survive a

motion to dismiss and get discovery, 890 F.2d at 1171 & n.4,

but the point was not necessary to the case because the

allegations of circumstantial evidence were inadequate even

under the less demanding standard of Title VII, see id. at

1172. Finally, in Siegert v. Gilley, 895 F.2d at 802, we

specifically held that "in order to obtain even limited

discovery, such [unconstitutional] intent must be pleaded with

specific, discernible facts or offers of proof that constitute

direct as opposed to merely circumstantial evidence of the

intent.". The pleading requirement entailed the discovery

consequence: if defendant was entitled to dismissal of the

case in the absence of specific assertions of direct evidence,

there would be no occasion for discovery. Although the

Supreme Court granted certiorari on the question whether "a

"heightened pleading’ standard which precludes limited

discovery prior to disposition on a summary judgment motion

violates applicable law," Pet. for Cert. i, quoted in Siegert v.

Gilley, 500 U.S. 226, 237 (1991) (Marshall, J., dissenting),

the Court in fact affirmed on a different, “preliminary” issue,

namely its conclusion that plaintiff had failed to allege a

constitutional violation at all. /d. at 232-35. In Kimberlin v.

Quinlan, 6 F.3d 789, 793-94 (D.C. Cir. 1993), we applied

our “direct evidence" requirement, and denied rehearing en

banc with a flurry of concurring and dissenting opinions, 17

F.3d 1525 (D.C. Cir. 1994). The Supreme Court granted

certiorari, 115 S. Ct. 929 (1995), but then vacated and

remanded, 115 S. Ct. 2552 (1995), for consideration in the

light of Johnson v. Jones, 115 S. Ct. 2151 (1995), which

clarified the circumstances permitting an interlocutory appeal

from denial of a summary judgment motion by a defendant

invoking qualified immunity, we then dismissed the

Kimberlin appeal. No. 91-5315, 1995 WL 759464 (D.C. Cir.

Nov. 8, 1995) (order remanding case to district court).

_s oo a oe

ed

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lla

Because the district court here applied the “direct

evidence” rule, mem. op. at 5 n.4, and found Crawford-El's

complaint wanting, id. at 15-17, the present case calls on us

to decide whether the circuit should continue to apply that

rule, foreclosing discovery unless the pleadings assert “direct

evidence" of illicit motive. We find that question easy, at

least if, as we believe, there are adequate alternative means of

reconciling Harlow's twin purposes in the context of

constitutional torts dependent on the official's having an

improper motive. We first address the drawbacks of the

"direct evidence" rule, and then consider alternative

extrapolations from the logic of Harlow.

Deficiencies of the "direct evidence" requirement.

First, the distinction between direct and circumstantial

evidence has no direct correlation with the strength of the

plaintiff's case. While a perjured claim of having heard a

confession of unconstitutional motive would meet the test, a

massive circumstantial case would not. See Siegert v. Gilley,

500 U.S. at 236 (Kennedy, J., concurring) (rejecting D.C.

Circuit's direct/circumstantial test on this ground); Elliott v.

Thomas, 937 F.2d at 345 (same). Second, the distinction

does not appear calibrated in any other way to the trade-offs

found determinative by the Court in Harlow and qualified

immunity doctrine generally. Although the rule presumably

did reduce the incidence of motive-related damage suits

against officers, we have no reason to think that it did any

better as a screen than, say, a random rejection of nine out of

every ten claims. The abandonment of circuit precedent e”

banc is of course not to be lightly undertaken. Critical Mass

Energy Project v. NRC, 975 F.2d 871, 875 (D.C. Cir. 1992)

(en banc) (quoting Arizona v. Rumsey, 467 U.S. 203, 212

(1984)). We have noted in contemplating such overrulings

that treatment of the issue in other circuits is a factor to be

considered. /d. at 876. Here, the only courts to consider our

12a

direct evidence rule have rejected it emphatically, see Elliott

v. Thomas, Branch v. Tunnell, 937 F.2d 1382, 1386-87 (9th

Cir. 1991), as have the four Supreme Court justices who have

chosen to speak on the matter. Siegert v. Gilley, 500 U.S. at

235-36 (Kennedy, J., concurring); id. at 245-46 (Marshall, J.,

with whom Blackmun & Stevens, JJ., concurred, dissenting).

Under the circumstances, we think it readily justifiable to

overrule our precedents establishing the direct/circumstantial

distinction, without even addressing the question whether

formulation of the rule as a pleading requirement violates the

liberal pleading concepts established by the Federal Rules of

Civil Procedure. See Leatherman v. Tarrant Co. Narcotics

Intelligence & Coordination Unit, 507 U.S. 163 (1993)

(invalidating heightened pleading requirement invoked by

municipal government unit as defense to constitutional tort, as

violation of Rules 8 and 9(b), but reserving issue of holding's

application to claims against individual government officials).

Alternative protections inferred from Harlow.

In Harlow the Supreme Court assumed that it had

established principles of officer liability that eliminated the

litigation burdens associated with an official's state of mind,

or, as it put the point in Mitchell v. Forsyth, that it had

"purged qualified immunity doctrine of its subjective

components." 472 U.S. at 517. For that proposition to be

literally true, it would be necessary to reject any officer

liability for constitutional torts in which the officer's intent is

an essential element in rendering the conduct unconstitutional.

See Elliott v. Thomas, 937 F.2d at 344 (carrying out "the

program of Harlow" would require imputing to defendants

the best intent they could possibly have); see also Silberman

Op., post (reading Harlow to extinguish liability for such

torts). As Elliott noted, however, that would eliminate any

damage remedy even for “egregious wrongdoing." 937 F.2d

at 344; see also Halperin, 807 F.2d at 186. What, then, does

=a em

13a

Harlow suggest are appropriate devices to balance the interest

in providing remedies against the interest in protecting

officials from the undue litigation burdens, including, as

Harlow emphasized, discovery itself?

We think the crux of the answer lies at the summary

judgment phase of litigation. It divides into two questions:

First, what methods may plaintiff use to secure evidence to

resist the defendant's motion for summary judgment? Second,

must plaintiffs evidence substantively meet some /Aigher

standard than the conventional preponderance test?

1. Methods available to plaintiff for securing evidence for

purposes of summary judgment resolution of qualified

immunity. The primary burdens of litigation occur in

discovery and trial. If the plaintiff can defer summary

judgment while he uses discovery to extract evidence as to

defendant's state of mind, Harlow's concern about exposing

officials to debilitating discovery will generally be defeated in

constitutional tort cases dependent on improper motive.

After describing its objective test, the Court said, “Until this

threshold immunity question is resolved, discovery should not

be allowed." 457 U.S. at 818. We can protect the sequence

apparently insisted upon by Harlow—no discovery until there

has been at least one cut at the qualified immunity issue—by

the straightforward rule that plaintiff cannot defeat a summary

judgment motion unless, prior to discovery, he offers specific,

non-conclusory assertions of evidence, in affidavits or other

materials suitable for summary judgment, from which a fact

finder could infer the forbidden motive. In his concurring

opinion in Siegert, Justice Kennedy adumbrated this

approach. Observing that “heightened pleading" was

inconsistent with Federal Rules of Civil Procedure 8 and 9(b),

he said:

500 U.S. at 236 (emphasis added).

In Elliott v. Thomas, 937 F.2d at 344-46, Judge

Easterbrook spelled out the point in more detail. “Unless the

plaintiff has the kernel of a case in hand (specific,

mental state], the defendant wins on immunity grounds in

advance of ae Id. at 344-45. Because the

substantive law—the law of qualified immunity

Harlow—tells the court what is needed for no nn

judgment, there is no conflict with Rule 56's provision for

summary judgment:

If a rule of law crafted to carry out the promise of Harlow

requires the plaintiff to produce some evidence, and the

plaintiff fails to do so, then Rule 56(c) allows the court to

grant the motion for summary judgment without ado.

937 F.2d at 345 (emphasis added). This is, of course,

substantially similar in result to the imposition of a

“heightened pleading" standard, in that both prevert serious

invasion of the defendant's time unless the plaintiff can,

without discovery, offer specifics of his case as to defendant's

motivation. See, e.g., Elliott v. Perez, Sawyer v. County of

Creek, 908 F 2d 663, 665, 668 (10th Cir. 1990) (noting that

1Sa

because plaintiff conceded inability to amend complaint

without discovery, dismissal would be with prejudice).

Although neither Elliott nor Justice Kennedy's concurrence

in Siegert expressly addressed Rule 56(f), which authorizes

the district judge to defer ruling on summary judgment and to

provide for depositions and other discovery, the solution

flows from their analysis of Harlow—its articulation of the

substantive right of qualified immunity. To allow the plaintiff

to engage in discovery, in order to carry his burden of

establishing a basis for inferring improper motive, would

violate Harlow’s determination to protect the official from

discovery until the qualified immunity issue has been resolved.

Under the Rules Enabling Act, the Federal Rules of Civil

Procedure “shall not abridge, enlarge or modify any

substantive right," 28 U.S.C. § 2072(b), so that any reading

of the Rules to trump officials’ substantive entitlements is

ee ee ee ee ee tee

illicit motivation does not bar discovery concerning 4

defendant official's state of mind for other purposes. A claim

for damages for an allegedly unreasonable search or seizure

will often turn on whether the defendant was in possession of

facts that would have led a reasonable officer to suppose he

had probable cause or exigent circumstances. See, ¢g.,

Anderson v. Creighton, 483 US. 635, 640-41 (1987)

(relevant question in that case was “the objective (albeit

fact-specific) question whether a reasonable officer could

have believed Anderson's warrantless search to be lawful, in

light of clearly established law and the information the

searching officers possessed") (emphasis added). Although

the Anderson Court appeared to discourage discovery even in

that context, see id. at 646-47 n.6, we do not understand its

message as remotely approaching an absolute bar Similarly,

in Billman v. Indiana Dep't of Corrections, 56 F 3d 785. 788-

16a

89 (7th Cir. 1995), the Seventh Circuit said it would permit

discovery to allow a prisoner to identify the proper defendants

in an Eighth Amendment case where a defendant would be

liable if it were shown that he Anew plaintiff's cellmate was

HIV-positive and had a tendency to rape cellmates, and was

the plaintiffs had to make in Anderson and Billman thus went

simply to the defendants’ acquisition of particular facts, not

the broader inquiry into motivation at stake here. Our case

would be equivalent if Crawford-El had simply to show that

Britton knew the boxes contained legal papers (or something

else of value to plaintiff) and was responsible for their

transfer

2 Requirement of clear and convincing evidence. There

still remains the question whether the defendant's entitlement

to summary judgment on qualified immunity before plaintiff's

discovery achieves an adequate balance in light of Harlow’s

purposes. Conventional summary judgment principles supply

some protection to defendants. Plaintiff must do better than

"show that there is some metaphysical doubt as to the

material facts." Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986). “The mere existence of a

scintilla of evidence in support of the plaintiffs position will

be insufficient [to block summary judgment for defendant]."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

* Thus, unlike Judge Edwards, see Edwards at 7-8, we do not

see any schism in the Seventh Circuit, between Elliotts

requirement that plaintiff himself supply evidence of

defendant's illicit motivation in order to withstand defendant's

summary judgment motion, 937 F.2d at 345, and Billman's

allowing plaintiff discovery to develop evidence that

defendant was aware of facts that would, if known to

defendant, render his conduct violative of the 8th

Amendment.

17a

Here defendants argue that that is not enough. They propose

a special standard, which they frame as a requirement of

"strong evidence." The United States as amicus proposes a

similar heightened standard, framing the proposal in terms of

pleading, it suggests that plaintiff be required to “plead

specific facts giving rise to a strong inference of the alleged

improper motive before any discovery will be permitted."*

Two factors make us believe that the standard protection

of summary judgment (coupled with the limit on discovery

stated above) leave an exposure to both liability and litigation

that is impossible to square with Harlow. First,

unconstitutional motivation is, as is often said of civil fraud,

easy to allege and hard to disprove. Bower v. Jones, 978 F.2d

1004, 1012 (7th Cir. 1992) (citing Hollymatic Corp. v. Holly

Systems, Inc., 620 F. Supp. 1366, 1369 (N.D. Ill. 1985)

("{F]raud, focusing as it does on a subjective state of mind,

can be very easy to allege and very difficult to prove or

disprove.")); see also Ross v. Bolton, 904 F.2d 819, 823 (2d

Cir. 1990) (rationale behind heightened pleading requirement

for fraud in Rule 9(b) is preventing improvident charges of

wrongdoing and strike suits); Charles A. Wright & Arthur R.

Miller, 5 Federal Practice and Procedure § 1296 (1990)

(same). Even cut off from the fruit of depositions and other

discovery against the defendant and her colleagues, plaintiff

will often be able to depict a selective pattern of decisions

that, without evidence of a more complete set of comparable

ones, and extensive explanation by one or more

5 Judge Edwards is correct that neither the Solicitor General

nor the government defendants advocated the “clear and

convincing” standard, see Edwards Op. at 11, but the

difference between that and what the Solicitor General did

advocate appears to be mainly that his proposed standard is

formulated in language that has much less experience and

tradition behind it.

18a

decision-makers, will look fishy enough that a jury could

reasonably find illicit motive by a preponderance.

Second, Harlow plainly views the costs of error in the

grant or denial of relief in such cases as asymmetrical. The

decision expressed a strong concern about the social costs of

damages litigation against officials—namely (to repeat), the

conventional costs of litigation, ti.. diversion of the officials’

time, deterrence of able persons from even accepting public

office, and the chilling of officials’ readiness to exercise

discretion in the public good. Because of those costs the

Court adopted a rule categorically denying recovery where, if

the truth could be fully known, there was a malicious

perpetration of a constitutional violation (but not a violation

of a right so clearly established that a reasonable person

would have known he was crossing the line). This can only

mean that the Court regarded at least some kinds of officer

liability (those turning on subjective intent) as ones where,

everything else being equal, the social costs of erroneously

denying recovery in some cases were exceeded by the

combined social costs of (1) litigating and (2) erroneously

affording recovery in other cases.

A standard solution to such a difference in costs between

two types of error is to adjust the standard of proof. Criminal

law is the best known example, where it is seen as better to

allow quite a few actually guilty defendants—perhaps many,

in fact—to go free than for one innocent one to be convicted:

ergo, the reasonable doubt standard. See, e.g., /n re Winship,

397 U.S. 358, 372 (1970) (Harlan, J., concurring) ("{I]t is far

worse to convict an innocent man than to let a guilty man go

free."), cf. 4 William Blackstone, Commentaries *358

(explaining two-witness rule in perjury cases). But civil law

contains frequent applications of a more modest tilt, a

requirement that the party seeking to mobilize the state to

alter the status quo prove his case by clear and convincing

19a

evidence. Courts have set that hurdle in deportation

Woodby v. Immigration and Naturalization

Service, 385 U.S. 276, 285 (1966); denaturalization

proceedings, Schneiderman v. United States, 320 U.S. 118,

123 (1943); civil commitment proceedings, Addington v.

Texas, 441 U.S. 418, 423 (1979); cases involving termination

of parental rights, Santosky v. Kramer, 455 U.S. 745, 756

(1982); defamation suits against public “gures, New York

Times Co. v. Sullivan, 376 U.S. 254, 285-86 (1964); and a

variety of other civil cases such as civil fraud, lost wills, and

oral contracts to make bequests, see Woodby, 385 U.S. at 285

n.18 (citing 9 Wigmore on Evidence § 2498 (3d ed. 1940)).

Although we understand the specific standards urged by

defendants and the United States ("strong evidence” and

"strong inference") to be aimed at similar concerns, we do not

pursue them because of their uncertainty compared to the

familiar clear and convincing standard.°

We pause to note a relationship between (1) the costs of

litigation regardless of outcome and (2) a different societal

valuation of the two types of error. Where the social costs of

litigation itself are exceptionally high, assuming no difference

at all in societal valuation of the two different types of error,

that alone could be a ground for a tilt against the party

seeking to alter the status quo. Because a reduction in the

probability of success reduces the incentives to bring suit

(everything else being equal), such a tilt will automatically

reduce the aggregate costs of the affected class of

lawsuits—at some cost in increasing the number of good

6 The "strong inference" standard is used by the Second

Circuit in securities fraud cases under Fed. R. Civ. P. 9b).

See, e.g., Acito v. Imcera Group, 47 F.3d 47, 52 (2d Cir.

1995); Shields v. Citytrust Bancorp, 25 F.3d 1124, 1127-28

(2d Cir. 1994).

20a

claims that go uncompensated.’ Accordingly, imposition of a

clear and convincing standard may imply (1) simply a

perception that the type of litigation involves unusually high

costs (so that a tilt against its initiators will decrease its

incidence, the court regarding the increase in denials of

recovery as an acceptable cost), or (2) a conclusion that

errors in defendants’ favor are independently to be preferred

to errors in plaintiffs’ favor, or (3) some combination of the

two. If the holding of Harlow represented nothing else, it

surely manifested either the first or third of those possibilities;

after all, in one stroke it destroyed an entire group of claims

for what was, by hypothesis, unconstitutional behavior.

The cases applying a clear and convincing evidence

standard frequently allude to the second of these rationales

(which of course is encompassed in the third). As the Court

observed in Addington, a standard of proof both “indicate{s]

the relative importance attached to the ultimate decision" and

also "serves to allocate the risk of error between the litigants."

441 U.S. at 423; see also Santosky, 455 U.S. at 755 (citing

Addington), Cruzan v. Director, Missouri Dep't of Health,

497 U.S. 261, 283 (1990) (same). The Court illustrated this

rationale in New York Times Co. v. Sullivan, quoting a Kansas

Supreme Court case to support its actual malice standard: "

"[O]ccasional injury to the reputations of individuals must

yield to the public welfare, although at times such injury may

be great.'" 376 U.S. at 281 (quoting Coleman v. MacLennan,

78 Kan. 711, 724 (1908)). The Supreme Court has used such

” Of course, many plaintiffs in civil rights actions against

public officials know that their chances of success on the

merits are minimal and may be motivated by purposes other

than achieving that success. The tilt makes it easier for

district judges to end such cases quickly, thereby reducing the

burdens on the defendant and the court that concerned the

Court in Harlow.

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2la

terms in discussing special gradations of proof. Woodby, 385

U.S. at 284-85; Addington, 441 U.S. at 423-25; Santosky,

455 U.S. at 755.

In developing the New York Times rule of clear and

convincing evidence, the Court explicitly drew on the

reasoning of Barr v. Matteo, 360 U.S. 564, 571, 575 (1959),

in which it had extended and explicated absolute officer

immunity for certain types of official acts. 376 U.S. at 282.

It recited Barr's entire litany of social costs of officer

liability—essentially those later invoked in Harlow—as a

parallel justifying its adoption of the New York Times rule. Id.

If a heightened standard of proof—clear and convincing

evidence—was a sound remedy in the area of public figure

defamation, we think it is equally so in the cognate area of

officer damage liability for constitutional torts based on

improper motive.

Heightened standards of proof of course apply equivalently

at summary judgment and at trial, as a seamless web. In

Anderson v. Liberty Lobby, Inc. the Court made clear that

just as the reasonable doubt standard for criminal trials implies

its use in judicial evaluation of motions for acquittal, the clear

and convincing standard for trial of malice for purposes of

public figure defamation must imply "a corresponding effect"

for motions for a directed verdict and for summary judgment.

477 U.S. at 252-54.8

® Once the plaintiff has come forward with evidence that a

jury could regard as clear and convincing proof of the

defendant's unconstitutional motive, his access to discovery

on all issues (including motive) would be, in the view of the

judges in the plurality, a matter for the district court to

determine as in ordinary civil litigation. In other words,

although the plaintiff would get no discovery unless he had in

hand evidence that would support a jury finding in his favor

22a

What of the pleadings? The label "heightened pleading" for

special requirements for constitutional torts involving

improper motive was always a misnomer. A plaintiff is not

required to anticipate the defense of qualified immunity in his

complaint, Gomez v. Toledo, 446 U.S. 635, 640 (1980), and

under the Federal Rules of Civil Procedure is required to file a

reply to the defendant's answer only if the district court

exercises its authority under Rule 7(a) to order one. At stake

has always been the ability of the plaintiff to inflict on the

defendant officer liability and the serious burdens of litigation

itself—discovery and trial. Although we understand the

arguments of the court in Schultea v. Wood, 47 F.3d 1427,

1432-34 (Sth Cir. 1995), supporting a rule that where

qualified immunity is raised in a case involving illicit motive

the district court's discretion not to order a reply "is narrow

indeed," we do not see why the limit on discovery and the

standard of proof discussed above would not adequately fulfill

the implications of Harlow. Of course court-ordered replies

and motions for a more definite statement under Rule 12(e)

may simplify and speed the process, but we do not see that

protection of substantive rights requires any special rules.

/ We note briefly the argument of the American Civil

Liberties Union as amicus, drawing on the recent decision in

Johnson v. Jones, 115 §. Ct. 2151 (1995). In Mitchell v.

Forsyth the Supreme Court applied the "collateral order"

doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S.

541 (1949), to hold that immediate appeal was available for

“denial of a defendant's motion for dismissal or summary

judgment on the ground of qualified immunity." 472 U.S. at

527. In Johnson the Court expressly limited Mitchell to pure

issues of law, id. at 2156, such as the determination that a set

on the motive issue, if he did have that evidence he could use

discovery to obtain additional evidence that might help him

win the battle of persuasion at trial.

Ae tet

—_a,

23a

of given facts constituted a violation of clearly established

law, id. at 2159. This made clear that appeals from denials of

summary judgment were not available for questions of

evidentiary sufficiency. /d. at 2156; see also Behrens v.

Pelletier, 116 S. Ct. 834, 842 (1996) (explicating Johnson).

The Court was especially concerned that allowing

interlocutory appeals of factual questions about intent "may

require reading a vast pretrial record, with numerous

conflicting affidavits, depositions and other discovery

materials" and would result in unjustifiable delay for the

plaintiff. Johnson, 115 S. Ct. at 2158.

The ACLU argues that Johnson concluded that where a

dispute about material facts exists in a constitutional tort case,

"the goal of shielding defendants from discovery or trial yields

to the usual goals of resolving cases on their merits through

normal procedures." But Johnson is not remotely so

sweeping. As the Court observed in Behrens, “Every denial

of summary judgment ultimately rests upon a determination

that there are controverted issues of material fact." 116 S. Ct.

at 842. The question for purposes of immediate appealability

is whether the point at issue is mere sufficiency of the

evidence or “more abstract issues of law." Johnson, 115 S.

Ct. at 2158; Behrens, 116 S. Ct. at 842. The Court never

addressed (or even hinted at) any adjustment in the summary

judgment standards for constitutional torts involving improper

motive under Harlow. Indeed, no court of appeals thus far

has abandoned its special standards in constitutional motive

cases in light of Johnson. See, e.g., Moore v. Valder, 65 F.3d

189, 195, 196 & n.13 (D.C. Cir. 1995); Morin v. Caire, 77

F.3d 116, 121 (Sth Cir. 1996); Veney v. Hogan, 70 F.3d 917,

922 (6th Cir. 1995); Hervey v. Estes, 65 F.3d 784, 788-89

(9th Cir. 1995); Gehl Group v. Koby, 63 F.3d 1528, 1535

(10th Cir. 1995). And, of course, this court recognized the

distinction drawn in Johnson before that case was decided,

see Crawford-El v. Britton, 951 F.2d at 1317 (no immediate

24a

review available for district court's treatment of an “I didn't do

it” defense on summary judgment); see also Johnson, 115 S.

Ct. at 2154 (listing Crawford-E/ among the decisions on the

side that Johnson found correct), yet nonetheless applied

special standards. More generally, so far as we know, most if

not all trial court proceedings over claims requiring clear and

convincing proof plod along without any application of the

collateral order doctrine. Limits on the reach of that doctrine

of course mean delay in the correction of trial court error and

a resulting increased exposure of officials to some adverse

consequences, but we do not see why every fine-tuning that

limits the immediacy of appeal should connote some

anti-defendant shift in the principles to be applied by the

district court.?

Application to Crawford-El

As we have seen, the district court dismissed Crawford-

El's Fourth Amended Complaint under the “heightened

pleading" requirement. If dismissal of the complaint were the

sole means available to protect defendants from discovery

barred by Harlow, then we would confront the issue of

whether Rule 8's minimalist standard ("a short and plain

statement of the grounds") could be applied to the sort of

complaints here at issue without violating 28 U.S.C. §

2072(b)'s ban on the exercise of rulemaking power to

* Judge Edwards accuses the plurality of insufficient "judicial

restraint," Edwards Op. at 14, but it is not clear by what

standard one resolution of a question unanswered by Harlow

is more or less "restrained" than another. Nor is it clear why

one should view a book review by a member of the plurality,

see id., Suggesting that courts take a modest role in

monitoring the judgments of the political branches, as

contradicting an opinion whose tendency (among the various

plausible alternatives) is to do exactly that.

25a

"abridge, enlarge or modify any substantive right." See

Leatherman v. Tarrant Co. Narcotics Intelligence &

Coordination Unit, 507 U.S. at 166-67 (leaving open

question of whether courts are to apply “heightened pleading"

requirement to claims against government officials). But we

see no reason why the government officials’ insulation from

discovery would not be amply protected by the principle we

have already described, entitling officials to summary

judgment resolution of their qualified immunity claims before

discovery. That being so, it is unclear how application of

conventional pleading standards could amount to the sort of

substantive abridgement forbidden by § 2072(b).

Accordingly, we think it was not correct for the district court

to apply, literally, a heightened pleading standard, quite apart

from the invalidity of our now-abandoned direct evidence

rule.

Quite obviously, however, the court and the litigants have

been caught in a vortex of changing standards. And although

the defendants have not moved for summary judgment since

the filing of the Fourth Amended Complaint, it seems sure

that they will do so. Moreover, plaintiff has been on notice at

least since our 1991 decision of the need for "nonconclusory

allegations that are sufficiently precise to put defendants on

notice of the nature of the claim and enable them to prepare a

response and, where appropriate, a summary judgment

motion on qualified immunity grounds." Crawford-El, 951

F.2d at 1317 (quotations and citations omitted). Accordingly,

it seems overwhelmingly likely that the Fourth Amended

Complaint represents at least a very close approximation of

what Crawford-El can advance in resistance to the motion for

summary judgment. In the unusual context of this case, then,

we are hardly giving an advisory opinion when we consider

whether affidavits embodying the assertions of the Fourth

Amended Complaint could successfully withstand Britton’s

26a

motion for summary judgment, backed by the affidavit she has

already filed.

1. Whether Crawford-El Has Alleged a First Amendment

Violation. We first examine whether Crawford-El's

allegations could possibly constitute a violation of a clearly

established constitutional right. See Siegert, 500 U.S. at 227

(question whether the conduct complained of constitutes

violation of clearly established law is at an "analytically earlier

stage" than question of heightened pleading standard); see

also Kartseva v. Dep't of State, 37 F.3d 1524, 1530 (D.C.

Cir. 1994) (same); Moore v. Valder, 65 F.3d at 195 (same).

Although the question is close, we hold that withholding

Crawford-E!'s property in retaliation for exercise of his First

Amendment speech rights would indeed be a violation of

clearly established law. 2

We must answer two questions here: (1) whether

Crawford-El’s speech was protected under the First

Amendment such that retaliation would be violation of a

clearly established mght and (2) how great the retaliatory

injury must be. We start with the first. The Supreme Court's

decision in Turner v. Safley, 482 U.S. 78, 88 (1987),

summarized existing precedent—including Procunier v.

Martinez, 416 U.S. 396, 413-14 (1974), and Pell v.

Procunier, 417 U.S. 817, 822 (1974)—and set out the test

controlling here: "[W]hen a prison regulation impinges on

inmates’ constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological interests."

Although on its face 7urner applies only to regulations,

several other courts have applied the test to other prison

actions, including those in retaliation cases. Frazier v.

Dubois, 922 F.2d 560, 562 (10th Cir. 1990) (applying Turner

in a First Amendment retaliation case); Jackson v. Cain, 864

F.2d 1235, 1248 (Sth Cir. 1989) (same); cf. Cornell v.

Woods, 69 F.3d 1383, 1388 (8th Cir. 1995) (in First

27a

Amendment retaliation case, applying Pell v. Procunier, 417

U.S. at 822 ("[A] prison inmate retains those First

Amendment rights that are not inconsistent with his status as

a prisoner or with the legitimate penological objectives of the

corrections system.")). Several cases have held that a

prisoner's right to have access to the press may be limited.

Pell v. Procunier, 417 U.S. at 835 (upholding prison

regulation prohibiting face-to-face media interviews with

particular inmates designated by the press), Kimberlin, 6

F.3d at 791 n6 (upholding under 7urner warden's policy

prohibiting prisoner press conferences and limiting prisoners’

press access to settings expressly authorized under prison

regulations). But no court has held that a total ban on

communications to the press passes muster. Cf. Nolan v.

Fitzpatrick, 45\ F.2d 545, 547 (ist Cir. 1971) (striking down

ban on prisoner letters to news media insofar as the letters

concerned prison matters, emphasizing that prison conditions

are “an important matter of public policy" about which

prisoners are “peculiarly knowledgeable"). And in light of

Turner and related cases, retaliation against Crawford-E! for

criticism of the prison administration that was truthful, and

not otherwise offensive to some penological interest (so far as

appears), would have violated a clearly established right of

which a reasonable prison official would have known. Cf

Pickering v. Bd. of Educ., 391 U.S. $63, 568, 571-72 (1968)

(holding thet “irst Amendment precludes dismissal of a school

teacher whe criticized Board of Education's handling of a

bond issue; public employees should be able to speak freely

on issues of public concern without fear of retaliation).

As to the sort of injury cognizable under the First

Amendment, Crawford-El here alleges the costs of replacing

underwear, tennis shoes, soft shoes, and other items, shipping

charges to get his papers back; and mental and emotional

distress. In our earlier opinion in this case, we noted that

some non-de minimis showing of injury is necessary in a

28a

constitutional tort action, 951 F.2d at 1321, 1322, and cited

Ingraham v. Wright, 430 U.S. 651, 674 (1978) ("There is, of

course, a de minimis \evel of imposition with which the

Constitution is not concerned."), and Bart v. Telford, 677

F.2d 622, 625 (7th Cir. 1982). Bart stated that “even in the

field of constitutional torts de minimis non curat lex." Id. “It

would trivialize the First Amendment to hold that harassment

for exercising the right of free speech was always actionable

no matter how unlikely to deter a person of ordinary firmness

from that exercise"—for example, a supervisor frowning at an

employee in retaliation would not constitute sufficient injury.

Id. Still, the effect on freedom of speech of retaliations “need

not be great in order to be actionable." /d; cf. Memphis

Community Sch. Dist. v. Stachura, 477 U.S. 299, 306-311

(1986) (out-of-pocket and mental distress damages

recoverable for violation of Due Process Clause and First

amendment nght to academic freedom); Hobson v. Wilson,

737 F.2d at 61-62 (mental distress damages recoverable for

violation of First Amendment right of political association);

Frazier v. Dubois, 922 F.2d at 561 (transfer of prisoner in

retaliation for exercise of First Amendment rights is

unconstitutional injury, citing cases).

The district court commendably latched onto our approval

of Bart and applied a sensible standard—whether an official's

acts “would chill or silence a “person of ordinary firmness’

from future First Amendment activities." Mem. op. at 13

(quoting Bart). The court then found that the pecuniary losses

Crawford-El sustained in the form of the costs of shipping his

boxes and replacing clothing, though small, might well deter a

person of ordinary firmness in Crawford-E!'s position from

speaking again. We agree that the acts asserted pass that test.

2. Whether a Jury Could Reasonably Find Clear and

Convincing Evidence of Retaliaiory Action. The Fourth

Amended Complaint alleges a variety of encounters between

29a

Crawford-El and Britton from which plaintiff believes it can

be inferred that the misdelivery of his goods must have been

in retaliation for various activities that are protected by the

First Amendment.

Crawford-El sets the stage with allegations that Britton

was hostile to him because of his actions on behalf of fellow

prisoners even before his contacts with the press. While he

was Clerk for the Occoquan Facility Housing and Ac «:.ment

Board at Lorton (from about October 1985 to April 1986), he

had frequent contact with Britton since she often served on

that Board and Crawford-El often went to the nearby block

containing Britton’s office to photocopy. He claims that

Britton, while despising all prisoners, was particularly hostile

to him because he had been in charge of the law library when

housed at the central facility at Lorton and hed helped many

prisoners prepare administrative grievanc... According to

Crawford-El, Britton deemed him "too big for his britches."

In April 1986 Crawford-El apparently invited reporters

from the Washington Post to visit the prison, correctly noting

on the visitor application form submitted to Britton that the

proposed visitors’ address was 1150 iSth Street, NW,

Washington, DC 20071, but discreetly omitting that this was

the Post's address. Britton approved the application. A

reporter came, and on April 20, 1986 the Post published a

front-page article under the headline “Jail Crisis Spills Into

Occoquan Unit," subheaded “Crowding, Anger Grow as D.C.

Inmates are Shifted to Va. Facility." It quoted Crawford-El's

account of an alleged irregularity—that on his arrival at

Occoquan a correctional officer had obtained trousers for him

by searching in other prisoners’ lockers for an extra pair. The

next day, says Crawford-El, Britton called him into her office

and told him he had “tricked” her and that “so long as

(Crawford-El] was incarcerated she was going to do

everything she had to to make it as hard for him as possible."

30a

Between April 1986 and Crawford-E!'s next successful use

officials’ negligence, he recovered about $500; in three others

he complained on behalf of himself and a class about the lack

Shortly after arrival at Spokane, Crawford-El again spoke

with a reporter from the Post. On December 18, 1988,

another front-page article appeared, "Sudden Move Severs

Inmates’ Ties to D.C.; Isolation of Spokane County Jail Puts

Prisoners “In a Firecracker Mood.'" It credited Crawford-El

with the firecracker metaphor and also quoted him as claiming

that the prisoners sent to Spokane were “the civil litigants of

Lorton who have been put here to get us out of their hair so

our lawsuits will be dismissed on procedural grounds."

Shortly after the publication of this article, according to

Crawford-El, Britton told a Spokane County Jail official that

Crawford-El was “a legal troublemaker,” meaning, according

to the complaint, “a prisoner who asserts her or his legal

nghts, or seeks administrative or judicial redress of

as an apt moniker." Crawford-El, 951 F.2d at 1319.

The alleged —_ retaliatory act—the misdelivery of

boxes—occurred in the course of Crawford-E!'s transfer back

from Spokane to Lorton and thence on to a federal prison in

3la

Marianna, Florida, a transfer over which Britton had charge.

At Spokane, Crawford-El was instructed to give his property

to officials there for forwarding to him. Crawford-E! alleges

Britton was aware of the boxes’ importance to him, saying

that when he and two other prisoners met Britton on August

18, 1989 at the Western Missouri Correctional Center en

route back to Lorton, they told her that their boxes contained

legal papers needed for ongoing cases. She allegedly said that

she understood Crawford-El's need for the personal property

and legal materials and that the boxes would be sent to her

office.'° (In her affidavit Britton contests the claim that she

was ever told of the papers: "I do not recall plaintiff telling me

that there were legal documents in his personal property, nor

did I have knowledge of the contents of the three sealed

boxes." She said she had the boxes sent to her office to keep

them from being lost.)

In late August, after arriving back at Lorton, Crawford-El

allegedly wrote to Britton requesting that his property be sent

to him as soon as she received it. Shortly afterward, he

noticed that some other prisoners returning from Washington

State had got their property. Just before he was transferred,

he checked with a Lorton “Property Officer" named Ward,

who told him that he could have hs property sent to him at

his final destination by writing a request to that effect after

arrival at that final destination. At still another intermediate

stop, the federal prison in Petersburg, Virginia, Crawford-El

learned from other D.C. prisoners that Britton had been

calling their families asking them to pick up the prisoners’

property because otherwise she would throw it away. He

10 On the trip back to Lorton, supervised by Britton, the

property Crawford-El was carrying with him (and that of

other prisoners as well) was put into storage on the bus and

apparently lost. Crawford-El won an uncontested small

claims court suit against Britton for $72.50 based on this loss.

32a

called his parents, who told him his brother-in-law Jesse

Carter had picked up his boxes. (Crawford-El was "upset" at

this, since he believed he would have difficulty getting

permission to receive the property once it had left the prison

system.) According to Crawford-El's own allegation in the

Fourth Amended Complaint, Carter told Crawford-El that

Britton had told him that she was concerned about Crawford-

El's legal materials and other property and was afraid the

boxes would be lost if she sent them to the Lorton Property

Officer for mailing to Crawford-El, and that federal prisons

would not accept shipments of D.C. prisoner property. That

account meshes with Britton's affidavit, which says that she

asked Carter to take Crawford-El's property "only to insure

its safety and protection from loss, and for no other reason

whatsoever." (Britton also stated that "we had been advised

by the Federal Bureau of Prisons that they would not accept

the personal property of the prisoners.") But Crawford-El

also says that Britton told Carter that Crawford-El “should be

happy she did not throw [his property] in the trash."

In the course of Crawford-El's attempts to get his property

back, his lawyer received a copy of a letter from the

Corporation Counsel's office, stating:

As has been our past practice, inmates transferring from

DCDOC [the D.C. Department of Corrections] to BOP

[the federal Bureau of Prisons] custody are permitted only

a small amount of personal property which should be

limited to personal care items and legal documents.

The letter also said that there were "significant differences

among DCDOC and BOP property policies and differences

between individual BOP facilities" and noted that "{i]n special

cases, we ask that DCDOC contact individual facility Inmate

Systems staff for permission prior to mailing any inmate

personal property to a BOP facility". Though Crawford-El's

33a

mother forwarded the boxes on to him at the prison at

Marianna, Florida, Crawford-El had some difficulty getting

them, as he had expected. Crawford-El asserts that this was

because they arrivec utside prison channels.

The allegations supplying the strongest evidence of

Britton's alleged malign intent are her threat to Crawford-El

after the 1986 Post article to make things "as hard as possible

for him" and her remark to Carter about throwing the boxes

in the trash. But those comments—for both of which

Crawford-El is the only source mentioned—are suspect as

self-serving assertions. The complaint undermines the "trash"

comment by affirmatively asserting that Carter said Britton

told him she was giving him the property out of concern

about its getting lost, an account that Britton's affidavit

supports. As for the allegation that Britton told a Spokane

County Jail official that Crawford-El was “a legal

troublemaker," the complaint itself defines that term in such a

way as to make it impossible to deny that the description is

apt. The letter by Corporation Counsel on its face suggests

some confusion about the federal Bureau of Prisons policy

concerning transfer of D.C. inmate's personal property,

reducing the likelihood that Britton's handing the property to

his brother-in-law was a deliberate scheme to keep it away

from Crawford-El. Indeed, in the absence of some reason to

believe Britton thought Carter had it in for Crawford-El or

was hopelessly incompetent (neither of which is claimed by

Crawford-El), or thought that federal prison officials would

much more readily allow Crawford-El to receive the property

if sent by the D.C. Department of Corrections than if sent

from outside the prison system, transfer of the boxes to the

brother-in-law makes an awkward fit with any serious

purpose to keep them from Crawford-El. In addition,

Crawford-El's own complaint states that Britton had

telephoned other D.C. prisoners’ families to ask them to pick

up those prisoners’ property at Lorton—behavior further

34a

reducing the chance that Britton's treatment of Crawford-El

had any retaliatory purpose. In short, a jury could not

reasonably find that Crawford's nonconclusory assertions

constitute clear and convincing evidence of unconstitutional

a “common denominator" of the reasoning of the majority, see

King v. Palmer, 950 F.2d 771, 780-81 (D.C. Cir. 1991) (en

banc)). If he adds ne evidence, the district court should grant

any future motion for summary judgment by Britton on the

federal claims against her.

Accordingly we vacate the dismissal of Crawford-El's First

Amendment retaliation claim against Britton, and the pendent

conversion claim (see supra note 1), and, once the panel has

resolved the issues between Crawford-El and the District (see

id.), remand the case to the district court for further

proceedings.

So ordered.

35a

SILBERMAN, Circuit Judge, concurring. Crawford-El, a

D.C. prisoner serving a life sentence for murder and a chronic

litigant whom we have previously described as a “trouble

maker," Crawford-El v. Britton, 951 F.2d 1314, 1320 (D.C.

Cir. 1991), cert. denied, 906 U.S. 818 (1992), has brought a

damage claim (now amended four times) against a prison

official who allegedly retaliated against him for the exercise of

his constitutional rights to bring innumerable law suits (and

talk to the press) by allowing his boxes of "legal material" to

be picked up by his brother-in-law (horrors!) when the

plaintiff was transferred from one prison to another.

There was a time, not too many years ago, when any

American lawyer or judge hearing that such a case was the

subject of an en banc hearing in a federal court of appeals,

even that it plausibly could be brought as a claim in a federal

district court, would have been incredulous. Before I discuss

what I believe to be the appropriate resolution of the

case—given the state of present law on qualified immunity of

government officials—I think it worthwhile to trace the

jurisprudential steps that have led us to this situation.

Particularly is this so because some justices have expressed

legitimate concerns about the degree of judicial

"policymaking" implicated in fashioning the substantive and

procedural framework of qualified immunity, see Wyatt v.

Cole, 504 U.S. 158, 171-72 (1992) (Kennedy, J., concurring,

joined by Justice Scalia);' see also Chief Judge Edwards’ Sep.

' Qualified immunity is not a new innovation and some have

expressed concern insofar as it has been extended beyond its

common-law boundaries. But at common law, we did not

have constitutional torts as such. Moreover, pre-trial

discovery in the nineteenth century was not burdensome (in

sharp contrast to our current system) due to the severe

restrictions placed on it, if it was allowed at all, even in the

most permissive of states. See Wolfson, Addressing the

36a

Op. at 14-15, overlooking the much more fundamental—and

bi ‘udicial poli Stee Sitteall he ak che

causes of action that have given us the problem.

L

Federal damage actions that typically raise qualified

immunity concerns are those brought against federal officials

as Bivens actions or against state officers under § 1 of the

1871 Civil Rights Act (hereinafter § 1983). Section 1983

reads:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage of any State or Territory or

the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in

an action at law, suit in equity, or other proper proceeding

for redress.

42 U.S.C. § 1983 (1994). Ironically, § 1983 was the least

controversial provision in the 1871 Act, attracting little

attention or debate. And for almost 100 years the federal

courts read that statute as it was clearly intended, to attack

the so-called "Black Codes" passed by Southern states after

the civil war, not private torts. See, e.g., Lane v. Wilson, 307

U.S. 268 (1939); Brawner v. Irvin, 169 F. 964, 968

(C.C.N.D. Ga. 1909) (dismissing case that alleged that the

police chief had whipped petitioner for striking his relative

since it alleged only a private tort). But in 1961 in Monroe v.

Pape, 365 U.S. 167, the Supreme Court extended the statute

to reach the behavior of Chicago police officers who did not

Adversarial Dilemma of Civil Discovery, 36 CLEV. ST. L.

REV. 17, 25-27 (1987).

37a

claim their actions were sanctioned under state law. Indeed,

there was little doubt that the plaintiffs had a tort remedy

under Illinois law. But as is so often true when the Supreme

Court hands down a decision that substantially expands

federal judicial power, the facts were dramatic: thirteen

Chicago police officers broke into the Monroes' apartment,

forced the Monroes to stand naked at gunpoint in the middle

of their living room, struck their children, and called Mr.

Monroe “nigger” and “black boy." /d. at 203 (Frankfurter, J.,

dissenting in part). The Court overrode what seems to me to

be the characteristically impeccable reasoning of Justice

Frankfurter (when he was relying on reasoning rather than

rhetoric) in dissent, and turned § 1983 into a provision that

ihe post-civil war Congress could not possibly have

visualized. See Zagrans, “Under Color Of" What Law: A

Reconstructed Model of Section 1983 Liability, 71 VA. L.

REV. 499 (1985). The Court's construction effectively read

out of the statute the “under color of law" limitation, making

it synonymous with the Fourteenth Amendment's state action

requirement.? Subsequently, the Court discovered a whole

series of new constitutional rights and applied the Bill of

? The Court's interpretation of "under color of law" has not

been its only creative interpretation of § 1983. It has allowed

litigants to use § 1983 to enforce statutes that have no

connection to the Fourteenth Amendment or the post-civil

war civil rights legislation. See Maine v. Thiboutot, 448 U.S.

1 (1980). The Court was not discomforted that its

interpretation would result in the scope of § 1983 being vastly

greater than its jurisdictional counterpart (which was the only

conceivable basis for § 1983 suits until § 1331 was passed

some years later). The dissent in 7hiboutot indicated that it is

"idiotic" to interpret § 1983 in this fashion. /d. at 21 n.9.

eer

Rights to the states. As a result, the 296 federal civil rights

actions against government officials filed in 1961 have

exploded into over 40,000 by 1988, over half of which were

filed by prisoners. In just the period between 1975 and 1984,

the number of prisoner civil rights cases increased by

approximately 200%, from 6,606 to a staggering 18,856. See

Eisenberg & Schwab, The Reality of Constitutional Tort

Litigation, 72 CORNELL L. REV. 641, 667 (1987). In

contrast, there were only 21 cases decided under § 1983 in its

first 50 years. See Comment, The Civil Rights Act:

Emergence of an Adequate Federal Civil Remedy?, 26 IND.

L.J. 361, 363 (1951).

Then, in 1971 the Court, in perhaps an even more stunning

exercise of judicial policymaking, fashioned a federal cause of

action for damages against federal officials for a

“constitutional tort." In Bivens v. Six Unkown Named Agents

of Federal Bureau of Narcotics, 403 US. 388 (1971), the

facts were again grim; six federal law enforcement Officials

without a warrant broke into the apartment of the plaintiff to

conduct a search. He was arrested in front of his wife and

children—who were also threatened with arrest—for a

narcotics violation and was subsequently interrogated,

searched, and booked. The case against him was ultimately

dismissed. Bivens reflected the Court's policy proclivity to

"equalize" the obligations of constitutional law imposed on

state government to those imposed on federal government.

See, e.g., Bolling v. Sharpe, 347 U.S. 497, 500 (1954); Butz

v. Economou, 438 U.S. 478, 501-03 (1978).

> In fairness, "incorporation" of the Bill of Rights had begun a .

long time before. See, e.g., Smyth v. Ames, 169 U.S. 466,

525-26 (1898) (applying the "Takings Clause" to state rate

regulation of railroads).

39a

To be sure, prior to 1875 and the passage of the general

federal question jurisdiction statute, an injured party could

bring a common-law suit in state court against a governmental

actor. The governmental official would then raise as a

defense that he was acting pursuant to a statute or authority

vested in him—a defense which could be defeated by showing

that the statute or delegated authority was unconstitutional.

For instance, the Fourth Amendment's prohibition against

unreasonable searches and seizures was enforced by bringing

a common-law trespass action against a governmental official,

an action which an official could not defeat by invoking a

claim of authority violative of the Fourth Amendment.* See

Boyd v. United States, 116 U.S. 616, 626-27 (1886). Of

course, there was no a priori assurance that there would

always be a common-law right guaranteeing a remedy for an

official's unconstitutional action (although there normally

would be), but this is only a problem if one thinks that there is

an @ priori reason to believe that every constitutional

violation must be remedied. Our historical practice simply

does not support the proposition that the Constitution is

self-executing. Cf Webster v. Doe, 486 U.S. 592, 613 (1988)

(Scalia, J. dissenting) (explaining that it is “untenable that

there must be a judicial remedy for every constitutional

violation").*

* In actions for trespass, the defendant would typically seek

damages against the trespasser. See, e.g., Huckle v. Money,

95 Eng.Rep. 768 (1763). While one might be tempted to

argue that since the framers envisioned the Fourth

Amendment being enforced through actions for

damages—where the Fourth Amendment negated the

government official's defense—the important point is that the

underlying cause of action was a creature of state law.

* One should keep in mind that even under the most 1.arrow

construction of Harlow v. Fitzgerald, 457 U.S. 800 (1982), it

40a

After 1875, the Court started down a different path. It

gradually concluded that an implied cause of action under the

Constitution existed where the remedy sought was an

injunction. The Court by “almost imperceptible steps ...

appears to have come to treat the remedy of injunction as

conferred directly by federal law for any abuse of state

authority which in the view of federal law ought to be

remediable." Hart, The Relations Between State and Federal

Law, 54 COLUM. L. REV. 489, 524 (1954). This process

culminated in Ex Parte Young, 209 U.S. 123 (1908), in which

the Court upheld an injunction of a state official where the

alleged wrong was the threat of future prosecutions.

Whatever the validity of this reasoning in an era when the

courts had license to create general federal common law, see

Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842), there is no

question that the Court's finding of an implied right to an

injunction against a government official in his official capacity

is on far more solid ground than the creation of an implied

right to damages against a governmental official as an

individual. After all, the Constitution (with a few exceptions

such as the Thirteenth Amendment) is concerned with

limitations on the power of government. Individuals are

implicated only insofar as they act as agents of the

government as opposed to private tortfeasors. Moreover, the

Court has for the last hundred years consistently followed this

line of reasoning in finding an implied right to an injunction;

Bivens suits lack such a pedigree® See, e.g., Davis v.

is inevitable that some meritorious suits will be barred. This

should not be surprising since the very notion of an

"immunity" from suit, as opposed to a "defense," entails that

valid constitutional claims will be barred.

° The Court has implied a damages remedy in order to enforce

the Fifth Amendment's prohibition on the taking of private

property for public use without just compensation. See

4la

Passman, 442 U.S. 228, 241-43 (1979) (explaining this

tradition), Chamber of Commerce v. Reich, 74 F.3d 1322,

1327-28 (D.C. Cir. 1996); Collins, “Economic Rights,"

Implied Constitutional Actions, and the Scope of Section

1983, 77 GEO. L.J. 1493, 1510 (1989). ge eran es

historically recognized right to injunctive reli viates:

need for a judicially-created damages remedy. As Justices

Frankfurter and Brandeis explained (and as _ implicitly

recognized by Justice Harlan in his Bivens concurrence)

“remedies” are independent of “rights.” Remedies can vary

based on the weighing of numerous policy considerations

Jacobs v. United States, 290 U.S. 13 (1933). However, the

damages remedy was against the government and has explicit

textual support in the Amendment's requirement that “just

compensation” be paid. See First English Evangelical

Lutheran Church of Glendale v. County of Los Angeles, 482

U.S. 304, 316 n.9 (1987) (citing cases that “make clear that it

is the Constitution that dictates the remedy for interference

with property rights amounting to a taking").

Some have argued that the Court after 1875, even if rarely,

also implied a personal damages remedy In most of these

cases, the Court seems to have conceived of the cause of

action, although admittedly sometimes artificially, as based

upon the common law. In Wiley v. Sinkler, 179 US. 58

(1900), and Swafford v. Templeton, 185 U.S. 487 (1902), the

two most cited examples of this implied damages remedy, the

Court concluded that the lower federal court had federal

question jurisdiction to entertain a suit for damages against

state officials for their interference with the plaintiffs’ mght to

vote in federal elections since it involved the construction and

application of the Constitution. The Court in these cases was

focused on whether the suits raised federal questions, not the

legitimacy of the damages remedy, although the two

questions admittedly do overlap

42a

Truax v. Corrigan, 257 U.S. 312, 354-57 (1921) (Brandeis,

J., dissenting); F. FRANKFURTER & N. GREENE, THE LABOR

INJUNCTION 205-223 (1930). The lack of a damages remedy

She en ws cage Gn mause of tie entesiing

Rehnquist pointed out in dissent i Ce

” To the extent that the Bivens Court relied on

authority to infer private damages remedies in

43a

J. BUCHANAN & G. TULLOCH, THE CALCULUS OF CONSENT

(1962) (arguing that all rational actors, including those in

government, pursue power), follows its own version of the

Breznev Doctrine—no significant retreat from extensions of

federal constitutional power (unless perhaps, if confronted by

Congress )—that is a vain hope.*

IL

As I have indicated, shocking factual allegations played no

small part in the development of the law in Pape and Bivens.

(Many journalists and lawyers describe as a virtue a

hypothetical Supreme Court justice's disposition to decide in

accordance with the facts of a particular case, they mean the

justice should decide how the dispute should be resolved

using a Solomonic policy-oriented methodology and then the

law should be fashioned to accommodate that resolution.) It

is hard to imagine a similar outcome in either case if facts akin

to Crawford-El's had been presented. In other words, if Pape

or Bivens had involved constitutional tort claims that

depended on allegations that the actor's motive was

proscribed, I am confident that the Supreme Court would not

have gone down either path, especially in light of the

involve, because virtually any ostensibly legal action taken by

a government official can be thought unconstitutional if

prompted by an unconstitutional motive.

Viewed in this light, Judge (now Justice) Ginsburg's

“heightened pleading” requirement that a plaintiff allege direct

evidence to show an unconstitutional motive for actions that

would otherwise be perfectly legal might be thought an effort

to keep a Bivens claim close to the kinds of facts that moved

* It could be argued that the Supreme Court's withdrawal

from Lochner is an exception, but of course substantive due

process grew back anew in “politically correct" gardens.

44a

rejection

of nine out of every ten claims." Judge Williams’ Op. at 10.

Since direct evidence of an unconstitutional motive for an

ostensible legal act is virtually never available (I do not recall

ever seeing such a case since Martin was decided), the Martin

heightened pleading requirement effectively kept Bivens

unconstitutional motive cases from going to discovery and

trial in our circuit for 10 years. That result, no matter how

reached, is not only desirable, it is implicitly contemplated, as

In actual practice, Judge Williams’ clear and convincing

test applied at the summary judgment stage may well have the

same ultimate impact as the Martin test. Under both

discovery." Elliott v. Thomas, 937 F.2d 338, 345 (1991).

promise a good deal of further litigation with very little return

* I quite agree with Judge Williams’ discussion of Leatherman

v. Tarrant Co. Narcotics Intelligence & Coordination Unit

507 U.S. 163 (1993), and also agree that a plaintiff is entitled

to discovery for certain other purposes. Judge Williams’ Op.

at 13-14.

46a

perhaps one of the simplest axioms of law and economics that

overdeterrence as well as underdeterrence yields inefficient

results. See P. SCHUCK, SUING GOVERNMENT 68-75 (1983).

( think the more straightforward solution, following

Harlow’'s reasoning, is to hold that when the defendant asserts

a legitimate motive for his or her action, only an objective

inquiry into the pretextuality of the assertion is allowed. If

the facts establish that the purported motivation would have

been reasonable, the defendant is entitled to qualified

immunity. Cf Halperin v. Kissinger, 807 F.2d 180, 188

(D.C. Cir. 1986). Although Harlow dealt specifically with a

different subjective aspect of an official's motivation—his

knowledge or appreciation of governing constitutional

law—as Judge Williams notes, the Court in Mitchell v.

Forsyth, 472 U.S. 511, 517 (1985), read Harlow as having

“purged qualified immunity doctrine of its subjective

components." See also Anderson v. Creighton, 483 U.S. 635,

645 (1987) (explaining that the Harlow Court “completely

reformulated qualified immunity along principles not at all

embodied in the common law, replacing the inquiry into

subjective malice so frequently required at common law with

an objective inquiry into the legal reasonableness of the

official action"). More important, Harlow itself unequivocally

states that “[uJntil this threshold immunity question is

resolved, discovery should not be allowed." 457 U'S. at 818.

That thought certainly strongly suggests that a factual dispute

over whether the defendant's otherwise legal action is

rendered illegal because of an unconstitutional motive cannot

defeat a qualified immunity defense. The Harlow Court

manifested a clear awareness of the peculiar difficulties that

litigation over any kind of motivational disputes entail:

There are special costs to “subjective” inquiries... In

contrast with the thought processes accompanying

“ministerial” tasks, the judgments surrounding

47a

discretionary action almost inevitably are influenced by the

decision maker's experiences, values, and emotions. These

variables explain in part why questions of subjective intent

so rarely can be decided by summary judgment ...

Id. at 816. The Court specifically noted that “petitioners

advance persuasive arguments that the dismissal of

insubstantial lawsuits without trial—a factor presupposed in

the balance of competing interests struck by our prior

cases—requires an adjustment of the “good faith’ standard

established by our decisions." /d. at 814-15. The gravamen

of the petitioners’ argument was that the qualified immunity

available under Butz was undermined by district courts which

"routinely denied motions for summary judgment on the

ground that the claim of malice or bad faith automatically

raised a triable issue of fact as to the defendant's state of

mind." It would be odd if the Court found this concern

persuasive and yet reformulated the qualified immunity

inquiry in a way that was not responsive to the difficulty of

defeating at summary judgment intent-based constitutional

suits. Nor is it at all clear that allowing a government official,

as Judge Williams puts it, Judge Williams’ Op. at 16, to

maliciously perpetrate a constitutional violation (so long as

the constitutional right was not so clearly established that a

"merely reasonable person" would not have known it) is less

"egregious," Judge Williams’ Op. at 11, than allowing the

same official to take an objectively reasonable action that

would be blameless if the defendant's motives were benign.

The very logic that leads my colleagues to reject the

distinction between direct and circumstantial evidence, it

seems to me, could lead to a similar rejection of the

distinction between two subjective elements (knowledge of

the law and actual motivation) of the constitutional

tort/qualified immunity analysis.

48a

Yet, as Judge Williams correctly notes, the circuit courts

have shrunk from that interpretation of Harlow. They have

done so, it appears, because of a concern that has driven

much of American jurisprudence in the latter half of the

twentieth century, the prospect of a racially discriminatory

act. See, e.g., Kennedy, The State, Criminal Law, and Racial

Discrimination: A Comment, 107 HARV. L. REV.1255

(1994) (discussing the impact of race on the evolution of

criminal law). Thus in Elliott, the Seventh Circuit recognized

that:

[cJarrying out the program of Harlow seems to imply

attributing to the defendants the best intent they

(objectively) could have under the circumstances, and

asking whether the law at the time clearly establishes that

persons with such an intent violate the Constitution. Yet

that would be the functional equivalent of eliminating all

recoveries when a mental state is part of the definition of

the wrong—as it is in cases of racial discrimination,

excessive punishment, and many other constitutional torts.

937 F.2d at 344 (emphasis added). Similarly, in Halperin,

where we actually so applied Harlow, at least to “national

security cases," see 807 F.2d at 187-88, we revealingly

suggested that to conclude that Harlow meant to preclude

inquiry into all intent would permit a defendant "to

discriminate on the basis of race." /d. at 186.

Giving Harlow its logical extension does not, in my view,

present any special problems of encouraging racial

discrimination, because, as I will discuss shortly, there are

other restraints on discriminatory official action. Therefore, I

would extend to all unconstitutional motive actions the

principle adopted in Halperin, where we held that if the

government defendants’ actions (wiretaps) in a Bivens case

would be "validated" by a legitimate national security motive,

49a

the defendants are entitled to immunity if they purport to act

for national security reasons, unless a jury could conclude that

it was objectively unreasonable for the defendants to so act.

A simple hypothetical illustrates its ease of application.

Suppose a plaintiff claims that a defendant (perhaps a judicial

official not covered by Civil Service or Title VII legislation),

see Whitacre v. Davey, 890 F.2d 1168 (D.C. Cir. 1989), cert.

denied, 497 U.S. 1038 (1990), impermissibly fired her

because of her race. The defendant claims that the plaintiff

was discharged because of budget constraints. If the

defendant's rationale would have been objectively reasonable

under the circumstances, the defendant wins on summary

judgment. In contrast, if a reasonable trier of fact could find

that budget constraints were objectively unreasonable under

the circumstances (if, for instance, the official's division

recently received a windfall of funds or hired a number of

additional workers), the case would proceed to trial.'° Cf

Halperin, 807 F.3d at 189 (noting that the defendants win on

summary judgment if they “adduce sufficient facts that no

reasonable jury ... could conclude that it was objectively

unreasonable for the defendants to be acting for national

security reasons"). To be sure, as I have noted, in Halperin we

limited our holding to national security cases, perceiving a

particular need to protect the executive branch from probing

into motivations that touch such sensitive issues. There the

government's wiretap was thought to be unconstitutional

unless it was motivated by national security concerns—so it

appeared as if it was the government that put motivation at

issue. But, I think that formulation is deceptive. Any action,

the discharge of a government employee say, could be

phrased the same way; as either illegal if motivated by

unconstitutional discrimination or constitutional if not.

‘0 Of course, if the government official (or the government)

does not deny that the defendant acted with an

unconstitutional motive, that is another matter.

50a

the Halperin panel meant by the notion of a

"validating" intent ent is that, as a matter of substantive law, the

re.

affected by this en banc proceeding.) Halperin's reasoning

avoids this analytical difficulty: if the challenged defendants’

actions, without regard to their actual intent, are consistent

with an objectively reasonably intent, the defendants are

entitled to immunity. And even if the defendants are not able

to meet this burden, they are still entitled to immunity if they

are able to prove thai their actual motivation was legitimate.'!

Judge Ginsburg (and to a lesser extent Judge Williams),

although assiduously avoiding a reference to Halperin,

can be made against either of their positions insofar as they

strengthen a defendant's hand even fractionally over Judge

Edwards’ position. There is simply no escape from a

'! Harlow allows the use of evidence concerning subjective

motivation if it benefits the government. "“[I]f the official

pleading the defense claims extraordinary circumstances and

can prove that he neither knew nor should have known of the

relevant legal standard, the defense should be sustained." 457

U.S. at 819. The Court then notes, somewhat cryptically,

that “[bjut again, the defense would turn primarily on

objective factors."

Sla

judgment, without any empirical data, as to where along the

spectrum to draw the line between the interests of

discouraging unconstitutional behavior and avoiding the

peculiar difficulties that the threat of personal damage suits

In any event, I do not think the matter is quite as simple or

self-evident as Judge Ginsburg's downward sloping demand

curve. We should bear in mind that in these cases, which

often arise in an employment context, the defendant, even if

he or she acts in part with a proscribed motive, that motive

typically is only a contributing factor to a decision. This has

led to terribly complicated jurisprudential efforts to develop

techniques to measure the relative importance of the

proscribed motive. Cf NLRB v. Wright Line, 662 F.2d 899

(Ist Cir. 1981), cert. denied, 455 U.S. 989 (1982), Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989), as modified by

the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat.

1071 (1991) (codified and amended in scattered sections of

42 U.S.C. (Supp. V 1993). Take the present case. How

would we really distinguish between the defendant's hard

feelings (if they could be established) toward the plaintiff

because he is a self-evident pest as opposed to the more

grandly phrased “because of his exercise of his First

Amendment rights"?

The truth of the matter—as most practitioners in the labor

and EEO field well know—is that a determination as to the

existence and relative importance of an illegal motive is

difficult, often artificially relying on certain presumptions.

And the behavior of the potential defendant ex ante is

typically directed at avoiding those indicia of the proscribed

motive that will tend to be relied upon in that substantive area

of the law. (Can one imagine an employer deciding whether

to discharge a employee for theft attempting, perhaps through

52a

yoga, to cleanse his mind of any hostility because of the

employee's union status?)

Still, it is difficult to deny that, at least theoretically, Judge

Williams’ view and even more Judge Ginsburg’s position

creates a greater disincentive to government officials taking

personal damage suits are decidedly not the only disincentive.

We should bear in mind of what my colleagues fail to take

behavior other than § 1983 or Bivens damage suits. When

officials violate citizens’ rights, they expose themselves to

disciplinary sanctions, harm to their professional reputations,

and reduced opportunities for advancement. See, ¢.g.,

SCHUCK, supra, at 69. Unlike normal tort law, federal and

state Officials are sworn to uphold the Constitution; violating

one's oath may mean a reputation for deceit and unreliability.

Certainly a rational actor would avoid this result, if only to

avoid a decrease in his or her value as an employee. C/

Epstein, Jn Defense of the Contract at Will, 51 U. CHI. L.

REV. 947, 967 (1984); R. POSNER, OVERCOMING LAW 109-

44 (1995). To the extent an individual fears moral

retribution, the oath will further induce proper behavior. |

hope I will be forgiven for assuming that such an oath, like a

monetary disincentive, can affect the behavior of government

officials. See Edward J. DeBartolo Corp. v. Florida Gulf

Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575

(1988); Webster, 486 U.S. at 613 (Scalia, J., dissenting).

Individuals who fear divine punishment also face a

downward-sloping demand curve: as the level of sin rises, the

punishment increases.

Moreover, a number of federal statutes are aimed at

governmental unconstitutional conduct. Even in the absence

53a

of suits for money damages,'? government officials will be

deterred by the threat of criminal prosecution.'? Government

officials possess no general immunity from such actions. See,

e.g., Imbler v. Pachtman, 424 U.S. 409, 429 (1976) (noting

that the Court has "never suggested that the policy

considerations which compel civil immunity for certain

government officials also place them beyond the reach of the

criminal law. Even judges, who have long been cloaked with

absolute immunity from damages, could be punished

criminally for willful deprivations of constitutional rights on

the strength of 18 U.S.C. § 242, the criminal analog of §

1983").

Federal statutes providing causes of action against the

government _itself—particularly those targeted at

12 In addition to § 1983, plaintiffs can sue officials for

monetary relief under 42 U.S.C. § 1981 (1994) (civil action

for denying persons the "full and equal benefit of all laws and

proceedings” guaranteeing security of persons and property),

§ 1982 (civil action for interference with citizens’ property

rights on the basis of race); § 1985 (civil action for

conspiracy to deprive persons of equal protection of the

laws); and § 1986 (civil action for failure to prevent a

conspiracy to interfere with § 1985 rights).

Admittedly, as Judge Ginsburg notes, qualified immunity may

apply to these actions for money damages as well.

13 See, e.g, 18 U.S.C. § 241 (1994) (criminal action for

conspiracy to “injure, oppress, threaten, or intimidate" a

person in the exercise of his constitutional rights); § 242

(criminal action for deprivation of a person's constitutional

rights on account of a person being an alien or by reason of

his race).

S4a

discrimination—provide additional deterrence.'* The

government undoubtedly looks askance to official misconduct

that subjects it to liability. See, e.g., Laura Oren, /mmunity

and Accountability in Civil Rights Litigation: Who Should

Pay?, 50 Pritt. L. REV. 935, 1003 (1989) ("Deterrence ... is

most effective at the level where control lies. It is the

government and not the individual employee, which has the

ability to change policy, discipline misconduct, and require 4

different kind of training."). And with respect to the actions

of state or D.C. officials, there are, as Justice Frankfurter

noted, state causes of action for damages.

Insofar as this panoply of remedies contains lacunae, I

would leave it to Congress to fill them.'* The gaps tolerated

4 See, e.g., Federal Tort Claims Act, 28 U.S.C. § 2674

(1994) (providing for a cause of action for some federal

governmental activity that constitutes a tort under state law),

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e

et seq. (1988 & Supp. V 1993); Civil Service Reform Act of

1978, Pub. L. No. 95-454, 92 Stat. 111 (codified as amended

in scattered sections of 5 U.S.C. (1994)) (establishing the

Office of Special Counsel to investigate and prosecute

allegations of supervisory abuse within the civil service

disciplinary structure). Age Discrimination and Employment

Act, 29 USC. §§ 621-634 (1994) (civil action for

employment discrimination based on age); Rehabilitation Act,

29 U.S.C. § 794 (1988) (civil action for discrimination on the

basis of disability).

'S See, eg., Bush v. Lucas, 462 U.S. 367, 390 (1983)

(declining to extend Bivens’ action to civil service employees,

even while assuming that existing remedies do not provide

complete relief for plaintiffs, “because we are convinced that

Congress is in a better position to decide whether or not the

public interest would be served by creating it"); Schweiker v.

Chilicky, 487 U.S. 412, 429 (1988) (refusing to create a

Bivens’ remedy in light of an elaborate scheme devised by

Congress and noting "{wJhether or not we believe that its

response was the best response, Congress is the body charged

with making the inevitable compromises requived in the

design of a massive and complex ... program"), Spagnola v.

Mathis, 859 F.2d 223, 228 (D.C. Cir. 1988) (en banc)

(holding that “courts must withhold their power to fashion

damages remedies when Congress has put in place a

comprehensive system to administer public rights, has “not

inadvertently” omitted damages remedies for certain

claimants and has not plainly expressed an intention that the

courts preserve Bivens’ remedies" (citation omitted)

(emphasis added)).

'© See, e.g., Bush, 462 U.S. at 389 ("Not only has Congress

developed considerable familiarity with balancing

56a

In any event, that there are real gaps is doubtful: by 1985

only 30 Bivens suits out of more than 12,000 resulted in a

monetary judgment for the plaintiff at the trial level with only

four judgments actually having been paid. See Written

Statement of John J. Farley, III, Director, Torts Branch, Civil

Division, U.S. Department of Justice, to the Litigation

Section of the Bar of the District of Columbia (May 1985) at

1. Obviously, the vast majority of these suits are meritless.

See Fallon, Meltzer & Shapiro, HART AND WECHSLER'S THE

FEDERAL COURTS AND THE FEDERAL SYSTEM 1122 (4th ed.

1996) ("The view that constitutional tort actions are less

confirmed as to both prisoner and nonprisoner actions ...,

although it is in the former class that the general lack of

substance is most striking.”). Prisoner suits serve less as a

necessary deterrent to unconstitutional conduct (to put it

mildly) than as a diversion from the monotony of prison life to

plaintiffs such as Crawford-El, whose injury is the

inconvenience of having some boxes being turned over to his

brother-in-law. Perhaps all sides in this dispute would have

been better off if the prison officials had agreed to provide an

alternative form of entertainment to Crawford-El, maybe free

governmental efficiency and the rights of employees, but it

also may inform itself through factfinding procedures such as

hearings that are not available to the courts."); United States

v. Gilman, 347 U.S. 507, 511-513 (1954) ("The selection of

that policy which is most advantageous to the whole involves

a host of considerations that must be weighed and appraised.

That function is more appropriately for those who write the

laws, rather than for those who interpret them.").

57a

cable, in return for not having to go through the expense and

hassle of this lawsuit.!'7

Although my reading of Harlow will reduce the costs to

government officials—and the public—caused by Bivens

actions and the impact of Pape on § 1983, much the better

would be for Congress to legislate on the whole subject as it

has on certain aspects of prisoner suits. The Supreme Court

has recognized that when and if it does, the federal judiciary

should beat a hasty retreat. See Bush, 462 U.S. at 368, 390.

'7 Congress has already taken steps to limit prisoner suits.

See Prison Litigation Reform Act of 1995, Pub. L. No. 104-

134, § 801 ef al., 110 Stat. 1321 (1996).

59a

I. General Principles

In relating this case to Harlow, we must consider not only

the compensatory role of constitutional tort liability but also

its deterrent purpose. The rule announced in Harlow

officials knowingly violate someone's constitutional rights.

An official who knows that the action he is contemplating

would violate an individual's constitutional rights can hardly

be confident that a court will later disagree—more precisely,

that the court will conclude that the official's action was

objectively reasonable under the law as clearly established at

the time. Harlow is cold comfort, ex ante, to that official.

This is why the Court could say in Harlow that the rule

announced there would “provide no license to lawless

conduct." 457 U.S. at 819.

We cannot make the same statement about the requirement

that the plaintiff prove his case by clear and convincing

evidence; as sure as we are that demand curves slope

downward and that there will be more of a behavior when the

price (or penalty) goes down, we can be confident that raising

the plaintiffs burden of persuasion will embolden some

additional Government officials to take actions that they

know are unconstitutional. Although we cannot know the

magnitude of that effect (i.e. the slope of the demand curve

for tortious conduct), | agree with Judge Williams that we are

justified in taking this step to contain the social cost of

litigating constitutional torts that turn upon the defendant's

motive.

My colleague, however, would take not only this but a

second step beyond Harlow; he would not only raise the

plaintiff's burden of persuasion but also require the plaintiff to

obtain evidence without the ability to compel its production

from those most likely to have it. No matter whether the

60a

plaintiff can demonstrate that he has a reasonable chance—or

for that matter a virtual certainty—of obtaining such evidence

from the defendant or even a third party, such as one of the

defendant's coworkers, Judge Williams would deny him any

discovery. This would further reduce the deterrent effect of

constitutional tort liability, perhaps to a point below what is

Judge Williams overlooks the point, Judge Silberman faces

conduct. hn ten ol Be rey

justify the balance that he or Judge Wiliams would strike

between the interests of injured plaintiffs and the public

interest in avoiding unfounded litigation against government

officials. First, those statutes do not reach all the

motive-based constitutional torts for which a plaintiff can seek

redress under Bivens or § 1983. Second, a plaintiff who

1983; ” eedihad Winning eaatiae iad alla toe

action brought against him. See Todd v. Hawk, 72 F.3d 443,

445 n.7 (Sth Cir. 1995) ("Racial discrimination claims brought

under § 1981 are subjec: to the defense of qualified

immunity"); Hobson v. Wilson, 737 F.2d 1, 19 (D.C. Cir.

1994) ("section 1985(3) encompasses actions against federal

Officers, subject, of course, to considerations of qualified

immunity").

Effective deterrence of unconstitutional conduct depends

unavoidably upon exposing public officials to some risks that

might also chill them in the proper exercise of their discretion.

In order to obtain any other remedy or impose any sanction,

the plaintiff or prosecutor respectively will have to show that

6la

ic official acted with a prohibited motive—racial,

religious, or gender discrimination, retaliation for protected

speech, or what have you. Although the public official will be

shielded from personal liability and, perhaps, from the cost of

retaining counsel, he will not be shielded from the demands

upon his time, the

Silberman suggests, based upon the low success-rate of

Bivens and § 1983 actions, that there is not much out there to

deter. He does not consider, however, that the low-success

rate is, in part, a result of the qualified immunity doctrine and

other legal rules. We cannot know how much additional

unconstitutional mischief the rules proposed by Judges

Silberman and Williams would elicit, but that seems reason

enough to proceed with more caution than either of them

displays. A more prudent and discriminating approach—one

that may preserve the desired deterrent while still lessening

the burden now placed upon defendant public

officials—would be to provide more guidance than we have

heretofore given to district judges faced with the task of

balancing, case by case, the competing values accommodated

by the institution of qualified immunity. We could then rely

upon them, as we normally do, to manage the fact-finding

process that my colleagues would truncate with clear but

Draconian rules.

62a

When a defendant files a motion for summary judgment

and the plaintiff argues that he needs discovery in order to

withstand the motion, Rule 56(f) invests the district court

with discretion to (1) deny the motion for summary judgment,

(2) continue the motion pending discovery, or (3) "make such

other order as is just." In a case involving qualified immunity,

the district court abuses this discretion if it fails duly to

consider not only the competing interests of the parties—as in

discovery had against a government official.

mine-run of cases" summary judgment is generally

inappropriate until all discovery has been completed, Martin,

812 F.2d at 1436, we have also recognized that "creditable

pleas of official immunity remove cases from the mine-run

category," id at 1436-37. Although we now reject

then-Judge Ruth Bader Ginsburg's elevation of direct over

circumstantial evidence, see id. at 1435, we ought not forget

her description of our task in a case such as this—to “leav(e]

some space for discovery" while “minimiz[ing] the burdens

imposed upon government officials." /d. at 1437.

In Martin we required the plaintiff to make factual

allegations sufficiently precise to enable the district court to

“employ with particular care and sensibility [its] large

authority to exercise control over discovery." /d. at 1437.

We expected that district courts would protect government

officials from “unnecessary involvement in [ } litigation" by

“permit([ting] particularized interrogation of the defendants for

the circumscribed purpose of ascertaining whether there is

any substance” to the plaintiff's specific factual allegations.

Id. at 1438.

Rather than looking further back, as Chief Judge Edwards

does, to the concern expressed in Hobson, 737 F.2d at 30-31,

63a

that “in some circumstances plaintiffs are able to paint only

with a very broad and speculative brush at the pre-discovery

stage," we should go forward along the path to which Justice

Ginsburg pointed us in Martin. Consideration of the social

costs associated with litigation against public officials (which,

as Harlow teaches, weighs heavily against discovery) should

constrain to this extent the district court's discretion to

continue a summary judgment motion pending discovery: If,

when the defendant moves for summary judgment, the

plaintiff cannot present evidence that would support a jury in

finding that the defendant acted with an unconstitutional

motive, then the district court should grant the motion for

summary judgment unless the plaintiff can establish, based

upon such evidence as he may have without the benefit of

discovery and any facts to which he can credibly attest, a

reasonable likelihood that he would discover evidence

sufficient to support his specific factual allegations regarding

the defendant's motive.

Chief Judge Edwards too speaks of requiring a "reasonable

likelihood that additional discovery will uncover evidence to

buttress the claim," but that is not the same as requiring a

reasonable likelihood, based upon specific evidence within the

plaintiffs command, that discovery will uncover evidence

sufficient to sustain a jury finding in the plaintiffs favor.

Moreover, the Chief Judge's emphasis upon some plaintiffs’

ability to “paint only with a broad and speculative brush," and

upon the district court's almost unfettered discretion (in the

mine-run of cases, that is) to continue a summary judgment

motion pending discovery, suggests a substantial difference in

our expectations of the district court.

Permitting a plaintiff to pursue limited discovery only upon

showing that he has a reasonable likelihood of turning up

evidence that a jury could consider clear and convincing proof

of the defendant's unconstitutional motive would leave more

:

E

$f

:

:

Silberman, would still protect the public from the costs of

pointless discovery against Government officials, and would

not usurp the district court's authority over the course of the

litigation. Moreover, I see no reason to doubt the district

court's willingness or ability to strike anew in each case the

balance that underlies the doctrine of qualified immunity.

Indeed, a district judge, whose experience with the

management of discovery is far more extensive than ours,

whose familiarity with the case and with the litigants is more

immediate, and whose tools for controlling the course of

litigation are more subtle and precise, is eminently qualified

for this task.

II. Application to this Case

I agree with my colleagues who conclude that Crawford-El

then it would be an abuse of discretion for the district court to

deny the motion or to continue it pending discovery.

A. The Summary Judgment Standard

In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-56

(1986), the Supreme Court explained how a district court

should determine whether a plaintiff has submitted evidence

sufficient to withstand a summary judgment motion when the

plaintiff must prove an element of his claim—in that libel case

it was actual malice—by clear and convincing evidence.

[T]}here is no genuine issue if the evidence presented in the

opposing affidavits is of insufficient caliber or quantity to

65a

allow a rational finder of fact to find actual malice by clear

Thus, in ruling on a motion for summary judgment, the

judge must view the evidence presented through the prism

of the substantive evidentiary burden.... It makes no sense

to say that a jury could reasonably find for either party

without some benchmark as to what standards govern its

deliberations and within what boundaries its ultimate

in fact provided by the applicable evidentiary standards.

Our holding that the clear-and- convincing standard of

proof should be taken into account in ruling on summary

judgment motions does not denigrate the role of the jury.

It by no means authorizes trial on affidavits. Credibility

determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts are jury

functions, not those of a judge, whether he is ruling on a

motion for summary judgment or for a directed verdict.

The evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in his favor...

In sum, we conclude that the determination of whether a

given factual dispute requires submission to a jury must be

guided by the substantive evidentiary standards that apply

to the case.... Thus, where the factual dispute concerns

actual malice, clearly a material issue in a New York Times

case, the appropriate summary judgment question will be

whether the evidence in the record could support a

reasonable jury finding either that the plaintiff has shown

actual malice by clear and convincing evidence or that the

plaintiff has not.

Thus, although the plaintiff is entitled to have all rational

inferences drawn in his favor on intermediate facts—such as

66a

hostility, in this case—those facts must add

convincing evidence of the ultimate facts that

prove—here, that Britton (1) in order to retaliate against

B. Crawford-El's Complaint

Let us now look at Crawford-El's sworn declarations to

see whether they are sufficient to withstand Britton's no doubt

imminent motion for summary judgment. In paragraph 6 of

his fourth amended complaint, Crawford-E] declares that

[1] Ms. Britton persistently displayed toward prisoners a

cavalier attitude—manifesting a view that prisoners were

beneath her, disentitled to dignity, and unworthy of civil

treatment. [2] Ms. Britton was hostile to plaintiff, in

particular, because she knew plaintiff ... had been in charge

of the law library [and] had helped many prisoners prepare

... grievance forms or appeals of disciplinary actions, and

had a reputation for asserting legal rights and knowing the

administrative procedures for doing so. [3] Ms. Britton

deemed plaintiff "too big for his britches."

The first sentence establishes merely that Britton did not like

prisoners generally, it says nothing specific about her alleged

unconstitutional motive. The second sentence states a fact

about Britton's state of mind, to which Crawford-E] may not

testify without laying a foundation. See Fed.R.Civ.Pro. 56(e)

("affidavits shall be maz on personal knowledge"), and

Fed.R. Evid. 602 (accord) and 701 ("testimony in the form of

Opinions or inferences is limited to those opinions or

inferences which are ... rationally based on the perception of

the witness"). The third sentence, provided without context,

does not tell us why Britton said that Crawford-El was “too

67a

big for his britches" or even whether the statement manifests

hostility.

In paragraph 9 of the complaint, Crawford-El declares that

Ms. Britton was among those who were hostile to the

Inmate Grievance Committee and to plaintiff's efforts to

seek redress of prisoner grievances. On one occasion

when plaintiff was typing [Housing and Adjustment] Board

papers in the Q Block office, Ms. Britton came in and said

to Cpt. (then Lt.) Brummell in a caustic manner that she

(Cpt. Brummell) should watch out for plaintiff and make

sure he wasn't using the typewriter to write up [grievance

forms] or lawsuits. As Ms. Britton said this she stood over

plaintiff to see what he was typing.

Britton's concern, even if caustically expressed, that

Crawford-El not conduct his jailhouse law practice when he

was supposed to be performing administrative work is not

evidence of hostility to Crawford-El's efforts to seek redress

of prisoner grievances.

In paragraph 12 of the complaint, Crawford-El declares

that

The day after the [first Washington Post] article was

published [April 21, 1986], defendant Britton ordered

plaintiff into her office. Corporal Barrett, then Officer in

Charge of Dorm K2, escorted plaintiff there. Ms. Britton

was visibly upset. After ignoring plaintiff for a

considerable period, she asked him if he had arranged the

visit by the reporter. When plaintiff said that he had, she

asked him how he had done it. Plaintiff showed her the

visitor application naming the reporters invited and their

address and pointed out that Ms. Britton had approved the

application. [7] Ms. Britton became enraged and accused

68a

plaintiff of tricking her. Plaintiff denied tricking her. [9

Ms. Britton said plaintiff had embarrassed her before her

coworkers by having the reporter come. Ms. Britton made

a telephone call trying to get plaintiff placed in restrictive

confinement in Q Block. [11] When this effort failed she

said that so long as plaintiff was incarcerated she was

going to do everything she had to do to make it as hard for

him as possible. A few days later Ms. Britton had plaintiff

transferred to the Department's Central Facility.

ws

Crawford-El's statement (in the 7th sentence) that Britton

"became enraged" when she thought she had been duped by

Crawford-El does not help his case. On the contrary, that she

was angered at being tricked—Crawford-El has no

constitutional right to trick his keeper—provides a qualifying

context for Crawford-El's most significant declarations: that

Britton said that she was embarrassed by the article and that

she would make life hard for Crawford-El.

Judge Williams brushes the allegations aside as

"self-serving." Self-serving opinions, inferences, and

conclusions without a basis in perceptible fact may not be

sufficient to withstand a summary judgment motion even

under the mere preponderance standard; but neither is

summary judgment “a procedure for resolving a swearing

contest" over concrete facts, see Jackson v. Duckworth, 955

F.2d 21, 22 (7th Cir. 1992) (Posner, J.) (§ 1983 action against

prison officials), should such a contest arise—Britton has not

contradicted Crawford-El's declaration with her own sworn

statement. Recall Anderson, in which the Supreme Court

instructed, again on a summary judgment motion in a case

where the plaintiff must prove an element by clear and

convincing evidence, that "[c]redibility determinations ... are

jury functions, not those of a judge," and that "[t}he evidence

of the non-movant is to be believed."

69a

Suppose Britton (or Corporal Barrett) were to corroborate

the alleged threat, however; without more it would not

clearly and convincingly indicate that Britton's decision to

deliver Crawford-El's property to his brother-in-law was

unconstitutionally motivated. Britton allegedly made the

threat in a moment of anger in April 1986, she delivered

Crawford-El's property to his brother-in-law in September

1989, at the same time (according to Crawford-El's own

declaration) that she was calling the families of other

prisoners, who, like Crawford-El, were being sent to the

federal prison in Petersburg, Virginia and threatening to

discard the prisoner's property if a family member did not

come to collect it.

In paragraph 15 of the complaint, Crawford-El declares

that

{During a transfer to the Spokane County Jail in

Washington State] Correctional Officer Ballard, with Ms.

Britton's knowledge, made a videotape of [ ] prisoners

{including Crawford-El] while they were handcuffed,

leg-shackled, and chained about their waists. Plaintiff and

several others protested to Ms. Britton that the videotaping

violated thir privacy rights. Plaintiff said to her that the

videotaping could not be done without the prisoners’

written authorization. Ms. Britton responded, "You're a

prisoner, you don't have any rights."

What does this show? That Britton was generally insensitive

to the constitutional rights of prisoners? Maybe. More likely

it shows simply that she did not believe that a prisoner has a

right not to be videotaped. In either event, it is not very

probative on the question whether (nine months later) she

retaliated against Crawford-El for exercising his first

amendment rights.

70a

In paragraph 17 of his complaint, Crawford-E] alleges that

shortly after publication of a second Washington Post article

(December 1988) in which he was quoted on the topic of

jailhouse lawyers, Britton told one Captain Manning of the

Spokane County Jail (to which Crawford-El had been

transferred) that Crawford-El was a “legal troublemaker." As

Judge Williams observes, Britton's describing Crawford-El as

a “legal troublemaker" is scant evidence of hostility. Indeed,

viewed as an expression of hostility it is too mild to support

the inference that she bore a grudge against Crawford-El nine

months later when she gave his legal papers to his

brother-in-law.

Finally, Crawford-El alleges that on August 18, 1989,

when he and other prisoners told Britton that property left in

her possession included important legal material, she "smirked

and spoke in a cavalier manner,” but "informed [Crawford-El]

that she understood his need both for his personal property

and his legal material and that she would personally see to it

that [he] would get them." Crawford-E! alleges also that

upon arriving at the federal prison in Petersburg, Virginia

several other D.C. prisoners informed him that Britton had

asked their families to pick up their property or she would

throw it away. Crawford-E] offers no evidence indicating that

Britton bore an unconstitutional animus toward any of these

other prisoners, on the contrary, that she apparently treated

the property of several prisoners in the same manner jibes

with her sworn declaration that she was motivated by what

she understood to be the policy of the Federal Bureau of

Prisons.

In sum, even if Crawford-El were by discovery to get

corroboration of every sworn declaration in his fourth

amended complaint, he would not have evidence that would

clearly and convincingly indicate to a reasonable jury what he

must prove. At best, his evidence would establish that in a

Tila

moment of anger. April 1986, Britton threatened to retaliate

against him for embarrassing her by making statements to a

Washington Post reporter, and that as recently as December

1988 she resented his jailhouse lawyering. Crawford-El

points to no evidence that Britton did anything to make good

on the 1986 threat before she delivered his legal papers to his

brother-in-law in September 1989, nor to anything suggesting

that he could discover evidence of such rabid hostility toward

him that it would constitute clear-and-convincing

circumstantial evidence that Britton was retaliating against

Crawford-El by treating him as she treated other similarly

situated prisoners.

Under the clear-and-convincing evidence standard, no

reasonable jury could find on these facts that Britton acted

with an unconstitutional motive in 1989 and Crawford-El has

not offered a reason to believe that more evidence can be

discovered. If on remand he has nothing more significant to

offer, then th: plaintiff should be denied discovery and the

defendant's motion for summary judgment should be granted.

72a

KAREN LECRAFT HENDERSON, Circuit Judge, concurring:

It is high time that we scuttle the awkward

the clear and convincing standard the plurality adopts in its

stead. I am at a loss to understand, however, why my

colleagues chose this case to do so. Despite repeated

opportunities to replead below, both pro se and through

appointed counsel, the plaintiff has failed, as he has so many

times before,' to allege facts demonstrating the deprivation of

any constitutional right (clearly established or not).? In short,

his constitutional claims are frivolous and the district court

would have done well to dismiss the complaint sua sponte

under the in forma pauperis statute, either before or after our

first remand. See 28 U.S.C. § 1915(d) (authorizing district

court to dismiss in forma pauperis suit “if satisfied that the

action is frivolous or malicious"). Nevertheless, my

! See, e.g., Best v. District of Columbia, No. 92-7196 (D.C.

Cir. 1995) (summarily affirming district court's dismissal of

claim of wrongful videotaping of prisoners); Crawford-El v.

Meese, No. 88-8034 (D.C. Cir. 1990) (summarily affirming

dismissal of challenge to prison diet); Crawford-El v. District

of Columbia Dep't of Corrections, No. 91-2413 (D.D.C.

1992) (dismissing claim for damages resulting from snakebite

allegedly caused by guards’ negligence); Crawford-El v.

Barry, No. 88-0715, (D.D.C. 1989) (sua sponte Giemissing

claims of wrongful deprivation of visitation privileges and of

denial of prison religious classes); Crawford-El v. Shapiro,

No 88-2339 (D.D.C. 1988) mene cece

2 See Siegert v. Gilley, 500 US. 226, 233 (1991) (finding

qualified immunity where plaintiff "failed not only to allege

the violation of a constitutional right that was clearly

established at the time of [the defendant's] actions, but also to

establish the violation of any constitutional right at all").

belongings over to his brother-in-law rather than sending

threat that she would "do everything she had to to make it as

hard for him as possible"? Whatever probative force the

alleged threat might otherwise have is undercut by the length

of time that elapsed before the “diversion” of the plaintiff 's

property. The plaintiff 's own factual allegations, on the other

employed at the Department of Corrections, " “informed

plaintiff that he had been called by Ms. Britton, that she had

told him she was concerned about his legal material and other

property, that she was afraid that the property might get lost

> The complaint does contain several allegations which, if

true, may indicate Britton’s general hostility toward the

plaintiffs now defunct claim of interference with his first

amendment right to petition the court, it does not

demonstrate intent to retaliate for the press interviews.

pe ye

Eveéfi assuming, against common sense, that Britton's

handling of the plaintiff's property amounted to some sort of

punishment, he has no claim under 42 U.S.C. § 1983. As the

panel noted in the plaintiff 's first appeal, there is a "general

principle that some showing of injury is a prerequisite to a

constitutional tort action." Crawford-El v. Britton, 951 F.2d

1314, 1322 (D.C. Cir. 1991) (citing Butz v. Economou, 438

U.S. 478, 504 (1978)) (Crawford-El 1). In addition, the

injury must be of constitutional dimension: “There is, of

course, a de minimis \evel of imposition with which the

Constitution is not concerned." Ingraham v. Wright, 430

U.S. 651, 674 (1977). The plaintiffs retaliation claim is

below the de minimis \evel. The only alleged in-uries

attributable to Britton are the costs of mailing three boxes of

belongings to Florida—incurred when the plaintiff finally

allowed his mother to send them—and, perhaps, a brief delay

in receiving them and the consequent cost of temporarily

replacing a few items, as well as the emotional distress

75a

flowing therefrom.* Such slight harm does not cross the

constitutional threshold. Cf. Buthy v. Commissioner of Office

of Mental Health, 818 F.2d 1046, 1050 (2d Cir. 1987)

(holding that state mental institution rule requiring forensic

unit patients to remain awake for fixed 16-hour period is "a

de minimis imposition on individual liberty" that cannot

support due process claim); Walsh v. Louisiana High Sch.

Athletic Ass'n, 616 F.2d 152, 158 (Sth Cir. 1980) (rejecting

student's challenge to “student transfer rule," making student

attending high school outside his home district ineligible to

participate in interscholastic athletics for one year, because of

"the de minimis nature of the burden placed on the plaintiffs’

free exercise of religion"). It is therefore redressable, if at all,

through a local conversion suit, not in federal court under

section 1983. See Crawford-El 1, 951 F.2d at 1318 ("At

worst, the act might constitute a common law

conversion...."); Paul v. Davis, 424 U.S. 693, 699-701

(1976) (state law tort does not a constitutional deprivation

make).

It is true that an ordinarily permissible act may become a

constitutional deprivation if performed in retaliation for the

exercise of a first amendment right. See, e.g. Perry v.

Sindermann, 408 U.S. 593 (1972) (decision not to renew

untenured professor's contract); Cornell v. Woods, 69 F.3d

1383, 1387-88 (8th Cir.1995) (transfer of inmate to different

prison); Meriwether v. Coughlin, 879 F.2d 1037 (2d

Cir.1989) (change in inmate's work assignment), Jackson v.

Cain, 864 F.2d 1235 (Sth Cir. 1989) (filing disciplinary

charges). The threshold injury requirement nevertheless

remains. A retaliation claim is actionable precisely "because

* Any other damages resulted not from Britton's decision but

from the plaintiff's own intransigence. It is even doubtful that

he would have suffered delay or replacement costs if he had

allowed his mother to forward his belongings promptly.

76a

retaliatory actions may tend to chill individuals’ exercise of

constitutional rights." American Civil Liberties Union of

Md., Inc. v. Wicomico County, 999 F.2d 780, 785 (4th Cir.

1993) (citing Perry v. Sindermann, 408 U.S. at 597). Thus,

the “test” for whether one exists “is whether the adverse

action taken by the defendants is likely to chill the exercise of

constitutionally protected speech." McGill v. Board of Educ.,

602 F.2d 774, 780 (7th Cir. 1979) (citing Pickering v. Board

of Educ., 391 U.S. 563 (1968)); see also DiMeglio v.

Haines, 45 F.3d 790, 806 (4th Cir. 1994) ("Not every

restriction is sufficient to chill the exercise of First

Amendment rights, nor is every restriction actionable, even if

retaliatory."); Bart v. Telford, 677 F.2d 622, 625 (7th Cir.

1982) ("It would trivialize the First Amendment to ‘old that

harassment for exercising the right of free speech was always

actionable no matter how unlikely to deter a person of

ordinary firmness from that exercise."). The plaintiff's claim

flunks the test. It is difficult to imagine that the minimal

adverse effect (if any) of Britton's actions was likely to chill or

deter him (or any reasonable person) from exercising his first

amendment rights. Thus, even if retaliatory, Britton's conduct

cannot give rise to a constitutional cause of action. See

DiMeglio v. Haines, 45 F.3d at 806-07 (stating that claim of

retaliatory reassignment of zoning investigator “to a

geographic subset of the very region from which he formerly

had derived his zoning assignments" “likely would not be

sufficiently adverse to implicate the First Amendment"),

Raymon v. Alvord Indep. Sch. Dist., 639 F.2d 257 (Sth Cir.

March Unit A 1981) (holding that student's claim of

retaliatory lowering of algebra grade, resulting in

"insignificant decrease in her overall grade point average" that

did not affect her class rank, was “patently insubstantial").

In sum, the plaintiffs meritless claims should have been

long since booted and, in any event, should never have been

77a

dignified with en banc review. Nevertheless, the issues have

been joined and I concur in the plurality's disposition of them.

78a

EDWARDS, Chief Judge, with whom WALD, RANDOLPH,

ROGERS, and TATEL, Circuit Judges, concur, concurring in

the judgment to remand: Justice Felix Frankfurter once

wrote:

[T]he only sure safeguard against crossing the line between

adjudication and legislation is an alert recognition of the

necessity not to cross it and instinctive, as well as trained,

reluctance to do so.

Felix Frankfurter, Some Reflections on the Reading of

Statutes, 47 COLUM. L. REV. 527, 535 (1947). This

admonition has been thoroughly lost on my colleagues who

have a different view of this case. Without any directive from

Congress or mandate from the Supreme Court, my colleagues

run roughshod over the Federal Rules of Civil Procedure and

invent new evidentiary standards that would make it all but

certain that an entire category of const'tutional tort claims

against government officials—whether or not

meritorious—would never be able to survive a defendant's

assertion of qualified immunity. This result is both

unfathomable and astonishing.

Fortunately, a clear majority of the court agrees that

plaintiffs who file constitutional tort claims alleging that

governmental officials acted with unconstitutional intent are

not obligated to meet any form of heightened pleading

standard in their initial complaint. Rather, it is clear that

plaintiffs need only adhere to the basic notice pleading

requirements of Federal Rule of Civil Procedure 8(c), and

need not anticipate an affirmative defense of qualified

immunity. Further, the opinions of the court make it clear

that we reject any heightened pleading rule that would require

plaintiffs to plead direct, rather than circumstantial, evidence.

79a

However, I strongly disagree with Judge Williams's and

Judge Henderson's opinions suggesting that, in the face of a

defendant's claim for qualified immunity, a plaintiff faces

dismissal (even without any discovery) unless he or she can

put forward specific, nonconclusory factual allegations

establishing the defendant's unconstitutional intent by "clear

and convincing" evidence. 1 similarly reject Judge

Silberman's opinion that would go even further and

completely rewrite the law to say that a motive-based claim

can never survive a motion to dismiss so long as the

defendant's behavior can be seen as consistent with any

possible legal motivation, i.e., without regard to whether it

can be demonstrated that the presumed legal motivation is not

what actually prompted the actions that are at issue.

It is not surprising that these opinions (along with the

separate opinion of Judge Ginsburg) can find no safe path to

common ground. These opinions offer judgments that are in

complete defiance of the Federal Rules of Civil Procedure,

inventing evidentiary standards out of whole cloth and

overlaying them onto the established procedures for

adjudicating lawsuits in our federal courts. Because there is

no principled basis for these judgments, the opinions flounder

in their rationales and command no majority position.' There

' Although all members of the court appear to agree that this

case must be remanded for further proceedings, the court is

sharply divided over the basis for remand. Judge Williams

Suggests that Judge Ginsburg's opinion (pursuant to which

Crawford-El might get discovery) provides a “common

denominator" of the reasoning of a majority, as the opinion

consistent with the disposition on the narrowest grounds.

Whether or not Judge Ginsburg's opinion controls, it is clear

that a majority of the court agrees that the trial judge must

have discretion to consider the appropriate circumstances

under which discovery should be allowed.

80a

are some telling similarities in the opinions, for each suffers

from the same glaring infirmities: the opinions are completely

unmoored to any legislative enactment or Supreme Court

precedent, and they are contrary to the law of every other

court of appeals in the nation. The net result is judicial

activism at its most extreme. Because I believe that this court

has no authority to amend the Federal Rules and to ignore

established precedent, I reject the positions offered by my

colleagues.

A. This Circuit's Jurisprudence

The issue raised by this case is not a new one. Ever since

the Supreme Court's opinion in Harlow v. Fitzgerald, 457

U.S. 800 (1982), holding that government officials generally

can be held liable for civil damages only if they “violate clearly

established statutory or constitutional rights," id at 818,

federal appeals courts have been forced to apply the principles

of Harlow to cases in which plaintiffs allege that defendants

The difficulty with these cases is that, in some instances,

plaintiffs might allege facts demonstrating that defendants

have acted lawfully, append a claim that they did so with

an unconstitutional motive, and as a consequence usher

defendants into discovery, and perhaps trial, with no hope

of success on the merits. The result would be precisely the

burden Harlow sought to prevent.

Hobson v. Wilson, 737 F.2d 1, 29 (D.C. Cir. 1984), cert.

denied, 470 U.S. 1084 (1985).

In order to prevent frivolous claims from reaching such an

advanced stage in the proceedings, the Hobson court required

that these motive-based complaints provide "nonconclusory

8la

allegations of evidence of such intent" in order to survive a

motion to dismiss and proceed to discovery. Jd According

to the court, “(t]he allegations on this issue need not be

extensive, but they will have to be sufficiently precise to put

defendants on notice of the nature of the claim and enable

them to prepare a response." /d. Unlike the rule proposed by

Judge Williams, this test did mot create a new judge-made

evidentiary standard, but was simply a “firm application of the

Federal Rules of Civil Procedure," as called for by the

Supreme Court in Harlow, 457 U.S. at 819-20 n.35 (internal

quotation omitted). Moreover, in Hobson, we noted that, "in

some circumstances plaintiffs are able to paint only with a

very broad and speculative brush at the pre-discovery stage,

and that overly rigid application of the rule ... could lead to

dismissal of meritorious claims," we therefore warned district

court judges to act cautiously and dismiss only those claims

that were “devoid of factual support.". Hobson, 737 F.2d at

30-31.

In subsequent cases, this court, while purporting to remain

faithful to Hobson, appeared to invent a new requirement,

that plaintiffs plead only direct, as opposed to circumstantial,

evidence of defendants’ unconstitutional motivation. Given

that the Supreme Court has stated that the probative value of

circumstantial evidence "is intrinsically no different from

testimonial evidence," Holland v. United States, 348 US.

121, 140 (1954), and that such evidence can in some cases be

"more certain, satisfying and persuasive than direct evidence,"

Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330

(1960), the so-called direct-evidence rule never has made any

sense. I therefore join my colleagues in emphatically rejecting

such an illogical and unjustified requirement. I also agree

with my colleagues that any evidentiary standard to be applied

on a motion for summary judgment must be applied

consistently at every subsequent stage of the proceedings

before the trial court. Otherwise, as with the direct evidence

82a

rule, plaintiffs would face a higher burden to survive a

pre-trial motion than they would face in order to prevail at

trial.

Having corrected our wrong turn towards a

direct-evidence rule, we should not now reach out and invent

yet another arbitrary and unjust standard. The correct

decision in this case is to return to the sound principles set

forth by the court in Hobson.

B. The Hobson Standard

Although this court has sometimes referred to the rule

enunciated in Hobson as a “heightened pleading standard,"

see, e.g., Siegert v. Gilley, 895 F.2d 797, 801 (D.C. Cir.

1990), aff'd on other grounds, 500 U.S. 226 (1991); Smith v.

Nixon, 807 F.2d 197, 200 (D.C. Cir. 1986), that label is

misleading because application of the Hobson principles does

not necessarily affect what the plaintiff must put in the

complaint. Indeed, the Supreme Court made it clear in

Gomez v. Toledo, 446 U.S. 635, 640 (1980), that, as a matter

of substantive law, “two—and only two—allegations are

required in order to state a cause of action" under 42 U.S.C. §

1983 (1994). A plaintiff must allege only that the defendant

"has deprived him of a federal right" and has “acted under

color of state or territorial law." Gomez, 446 U.S. at 640. A

defendant's qualified immunity is an affirmative defense, and,

therefore, “the burden of pleading it rests with the defendant”

under the Federal Rules, which provide that the defendant

must plead any “ "matter constituting an avoidance or

affirmative defense.'" /d. (quoting FED. R. Civ. P. 8(c)).

Thus, pursuant to Gomez, a plaintiff has no obligation to

anticipate or respond to a potential qualified immunity defense

in the initial complaint.

83a

Once the defendant actually asserts the qualified immunity

defense, however, the court must then determine whether the

plaintiff can offer a sufficient factual basis to support the

allegations of unconstitutional animus and therefore overcome

qualified immunity. Under the Federal Rules, there are a

number of appropriate mechanisms available by which the

plaintiff can provide this additional factual support. For

example, pursuant to Rule 7(a),? the plaintiff may file a reply

that sets out the plaintiff's evidence relevant to immunity and

the material that the plaintiff claims is reasonably likely to lead

to pertinent additional evidence. See Schultea v. Wood, 47

F.3d 1427, 1432-33 (Sth Cir. 1995) (en banc). Alternatively,

the plaintiff may file an amended complaint} or a more definite

statement,* or the court can use its discretionary power over

discovery under Rule 26(b) to limit initial discovery to a brief

interrogatory concerning the plaintiff's evidence relevant to

immunity.’ In any of these scenarios, the trial court is able to

? Federal Rule of Civil Procedure 7(a) states that “the court

may order a reply to an answer or a third-party answer."

’ Federal Rule of Civil Procedure 15(a) permits a party to

amend its complaint at any time “by leave of court."

* Federal Rule of Civil Procedure 12(e) permits a Motion for

More Definite Statement if a pleading “is so vague or

ambiguous that a party cannot reasonably be required to

frame a responsive pleading "

* Federal Rule of Civil Procedure 26(b)(2)iii) permits the

court to alter the limits on discovery if the trial judge

determines that “the burden or expense of the proposed

discovery outweighs its likely benefit, taking into account the

needs of the case, the amount in controversy, the parties’

resources, the importance of the issues at stake-in the

84a

evaluate the nature of the plaintiffs allegations concerning

unconstitutional intent, prior to ruling on a defense motion for

summary judgment.

Thus, rather than refer to the Hodson test as a heightened

pleading requirement, I agree with Judge Easterbrook that we

should “speak instead of the minimum quantum of proof

required to defeat the innial motion for summary judgment.”

Elliott v. Thomas, 937 2d 338, 345 (7th Cir. 1991), cert.

denied, 502 U.S. 1121 (1992). Under the principles

enunciated in Hodson, plaintiffs can survive an initial motion

for summary judgment, prior to discovery, by providing

“nonconclusory allegations of evidence” of the defendant's

Hobson also rightly recognized that the courts should be

cautious in applying this standard, lest meritorious claims be

dismissed. For example, it will sometimes be the case that the

relevant evidence is in the possession of the defendant and is

therefore unavailable to the plaintiff without further

discovery. Thus, if the plaintiff can show a reasonable

likelihood that additional discovery will uncover evidence to

buttress the claim, the trial judge may invoke Rule 56(f) and

deny the summary judgment motion.®

litigation, and the importance of the proposed discovery in

resolving the issues."

° Federal Rule of Civil Procedure 56(f) expressly grants the

trial judge broad discretion to order discovery prior to ruling

on a summary judgment motion, where the party opposing the

motion cannot “present by affidavit facts essential to justify

the party's opposition." This court has explicitly held that the

decision whether or not to stay discovery pursuant to Rule

56(f) is committed to the sound discretion of the District

Court. White v. Fraternal Order of Police, 909 F.2d 512,

85a

These procedures are part of the standard apparatus

provided by the Federal Rules to enable trial judges in civil

and the Supreme Court has never suggested that this same

apparatus is somehow inadequate when it comes to the

particular immunity concerns expressed in Harlow. Indeed,

as Justice Kennedy has pointed out, the objective standard for

qualified immunity articulated in Harlow was based on the

fact that the standards for summary judgment at the time

"made it difficult for a defendant to secure summary judgment

regarding a factual question such as subjective intent." Wyatt

v. Cole, 504 U.S. 158, 171 (1992) (Kennedy, J., concurring).

Now, however, "subsequent clarifications to

summary-judgment law have alleviated that problem, by

allowing summary judgment to be entered against a

nonmoving party “who fails to make a showing sufficient to

establish the existence of an element essential to that party's

case, and on which that party will bear the burden of proof at

trial.’ " Jd (quoting Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986)). As a result, Rule 56 is now more than adequate

to dispose of unmeritorious claims without appellate judges

taking it upon themselves to invent new evidentiary standards

designed to address particular categories of cases.

C. The Proposed Standard

Judge Williams's opinion argues that its Draconian rule

requiring “clear and convincing” evidence is necessary to

vindicate the substantive right of qualified immunity. I am

inclined to agree with the view of the Seventh Circuit that "it

517 (DC. Cir. 1990). Yet, the new evidentiary standard

proposed by Judge Williams would effectively strip the trial

judge of this discretion, by denying any discovery to piaintiffs

unless they can provide “clear and convincing” evidence prior

to discovery.

86a

is hard to depict a “right not to be tried’ " as a substantive,

rather than procedural, right. Elliot, 937 F.2d at 345.

However, even were I to assume that qualified immunity is a

substantive right, there is no valid justification for requiring

plaintiffs to satisfy a “clear and convincing” evidence test in

the cases here at issue. ee eae aoe

judgment offered by those judges subscribe to Judge

Williams's opinion, for the new rule that they propose would

have a devastating impact on potential plaintiffs who already

face substantial burdens in attempting to pursue civil nghts

argued that there is a “peculiar perversity” in imposing 4

heightened standard in cases involving prison inmates because

"it is far more difficult for a prisoner ae oa

complaint than for a free person to do so" to

prisoners have no power to investigate their claims and gather

evidence prior to obtaining discovery. Billman v. Indiana

Dep't of Corrections, 56 F.3d 785, 789-90 (7th Cir. 1995),

see also Kit Kinports, Qualified Immunity in Section 1983

Cases: The Unanswered Questions, 23 GA. L. REV. 597, 647

(1989) (The author argues that, in a case where the motive

underlying a defendant's actions is a fact solely within the

knowledge of the defendant, a court could not fairly grant

defendant's motion for summary judgment before plaintiff has

been given an opportunity to conduct discovery on this

issue. ). Thus, with regard to such cases, the standard

proposed by Judge Williams, while purporting to permit some

intent-based qualified immunity claims, would, as a practical

matter, make it virtually impossible for these claims ever to

survive a motion to dismiss. See David Rudovsky, 7he

Qualified Immunity Doctrine in the Supreme Court: Judicial

Activism and the Restriction of Constitutional Rights, 138 U.

PA. L. REV. 23, 63 (1989) ("Where the plaintiff must establish

the culpability element as part of the constitutional claim,

denial of discovery on this issue would make it impossible to

prove certain cases.").

87a

In reading the opinions by Judge Williams and Judge

Henderson, one is left with the impression that a “clear and

convincing” standard is deemed necessary because, without it,

some plaintiffs in section 1983 cases might actually prevail on

their claims. Yet, it is overwhelmingly clear that the Court in

Harlow never for a moment intended to insulate government

officials from liability in all cases where the official's state of

mind is a necessary element of the constitutional violation

alleged. In fact, in Harlow itself the plaintiff alleged that the

defendants had violated his First Amendment rights by

dismissing him in retaliation for testifying before a

congressional committee. As then-Judge Ruth Bader

Ginsburg has pointed out,

(hjad the Court intended its formulation of the qualified

immunity defense to foreclose all inquiry into the

defendants’ state of mind, the Court might have instructed

the entry of judgment for defendants .. on the

constitutional claim without further ado. In fact, the Court

returned the case to the district court in an open-ended

remand, a disposition hardly consistent with a firm intent

delete the state of mind inquiry from every constitutional

tort calculus.

Martin v. District of Columbia Metro. Police Dep't, 812 F.2d

1425, 1432 (D.C. Cir.), vacated in part, 817 F.2d 144 (D.C.

Cir.), reinstated, 824 F.2d 1240 (D.C. Cir. 1987).

Moreover, if a “clear and convincing” evidence standard

were truly necessary to vindicate defendants’ alleged

substantive right not to be tried, as some of my colleagues

seem to believe, one wonders why no other circuit has seen fit

to embrace such a rule. Indeed, although nearly every other

federal appeals court in the nation has addressed the precise

issue that we face today, not one has adopted a standard even

approaching the positions offered by my colleagues who view

this case differently. Instead, all ten circuits that have

addressed the issue have adopted formulations that are

essentially identical to the one laid out in Hobson and echoed

in Justice Kennedy's concurrence in Siegert v. Gilley, 500

U.S. 226, 236 (1991) (Kennedy, J., concurring) ("Upon the

assertion of a qualified immunity defense the plaintiff must put

forward specific, nonconclusory factual allegations which

establish malice, or face dismissal.").”

7 Although some of the circuit courts have actually adopted

some form of so-called “heightened pleading" requirement

ant bey. 1 chase & on Oo SSeS Saree

stage (an approach that I believe runs counter to Gomez), the

more important point is that, regardless of when they apply

the test, the courts have been quite consistent in articulating

the appropriate evidentiary burden. See Blue v. Koren, 72

F.3d 1075, 1084 (2d Cir. 1995) ("[{T])he plaintiff must proffer

particularized evidence of direct or circumstantial facts ..

supporting the claim of an improper motive in order to avoid

summary judgment."); Colburn v. Upper Darby Township,

838 F.2d 663, 666 (3d Cir. 1988) ("The dual policy concerns

of protecting state officials from a deluge of frivolous claims

and providing state officials with sufficient notice of the

claims asserted to enable preparation of responsive pleadings

have led us to impose on section 1983 claims the additional

pleading requirement that the complaint contain a modicum of

factual specificity, identifying the particular conduct of

defendants that is alleged to have harmed the plaintiffs."

(internal quotation omitted)), cert. denied, 489 U.S. 1065

(1989); Gooden v. Howard County, Md., 954 F.2d 960, 969-

70 (4th Cir. 1992) (en banc) ("To avoid evisceration of the

purposes of qualified immunity ... plaintiffs alleging unlawful

intent ... [must] plead specific facts in a nonconclusory fashion

to survive a motion to dismiss."); Schultea v. Wood, 47 F.3d

1427, 1434 (Sth Cir. 1995) (en banc) ("The district court

need not allow any discovery unless it finds that plaintiff has

89a

supported his claim with sufficient precision and factual

specificity to raise a genuine issue as to the illegality of

defendant's conduct at the time of the alleged acts."); Veney

v. Hogan, 70 F.3d 917, 922 (6th Cir. 1995) (Plaintiff must

respond to an assertion of qualified immunity with “specific,

non-conclusory allegations of fact that will enable the district

court to determine that those facts, if proved, will overcome

the defense of qualified immunity."); Elliott v. Thomas, 937

F.2d 338, 344-45 (7th Cir. 1991) ("(T)he plaintiff [is

required] to produce specific, nonconclusory factual

allegations which establish the necessary mental state, or face

dismissal." (internal quotation and alteration omitted)), cert.

denied, 502 U.S. 1121 (1992); Edgington v. Missouri Dep't

of Corrections, 52 F.3d 777, 779 (8th Cir. 1995)

("Complaints seeking damages against governmental officials

.. are subject to a heightened standard of pleading with

sufficient specificity to put defendants on notice of the nature

of the claim."); Branch v. Tunneil, 937 F.2d 1382, 1387 (9th

Cir. 1991) ("We believe a requirement that a plaintiff must put

forward nonconclusory allegations of subjective motivation -

satisfies Harlow’'s directive that government officials should

be shielded from "insubstantial’ lawsuits, while at the same

time preserving the opportunity for plaintiffs to pursue

meritorious claims."); Walter v. Morton, 33 F.3d 1240, 1243

(10th Cir. 1994) ("To survive a summary judgment motion, a

plaintiff must point to specific evidence showing the official's

actions were improperly motivated."); Oladeinde v. City of

Birmingham, 963 F.2d 1481, 1485 (11th Cir. 1992) ("In

pleading a section 1983 action, some factual detail is

necessary."), cert. denied, 507 U.S. 987 (1993). The First

Circuit has not adopted a particular formulation of the

standard, but instead has made it clear that intent-based claims

can be sufficient to overcome qualified immunity, see

Feliciano-Angulo v. Rivera-Cruz, 858 F.2d 40, 46 (ist Cir

1988), and has indicated that motions for summary judgment

90a

Further, we have been presented with no evidence to

indicate that, under these formulations, government officials

around the country are being subjected to intolerable litigation

burdens from intent-based civil rights suits or that district

court judges are routinely permitting frivolous claims to go

forward. Indeed, it is worth noting that neither the Solicitor

General nor the government defendants themselves even

advocated a "clear and convincing" evidence standard in their

submissions to this court.?

A rule requiring plaintiffs to meet a higher evidentiary

standard in qualified immunity cases has never been endorsed

in qualified immunity cases will be handled under the Federal

Rules just like any other case, see Alexis v. McDonald's

Restaurants of Mass., 67 F.3d 341, 348-49 n.7 (lst Cir.

1995). Thus, no other federal jurisdiction operates under a

standard even approaching the harshness of the positions

endorsed by the judges who view this case differently.

8 To the contrary, at least one empirical study of

constitutional tort litigation concludes that "the image of a

civil rights litigation explosion is overstated and borders on

myth." Theodore Eisenberg & Stewart Schwab, The Reality

of Constitutional Tort Litigation, 72 CORNELL L. REV. 641,

643 (1987).

9 Although the brief of J. Michael Quinlan and Loye W.

Miller, Jr., as amici curiae, does suggest a “clear and

convincing" standard as a possible alternative to the direct

evidence rule, amici offer no legal precedent requiring or

supporting such a standard, arguing instead that, as a policy

matter, the proposed standard would be appropriate given

"the venerable principle that government officials are

presumed to act in good faith." Brief of J. Michael Quinlan

and Loye W. Miller, Jr. as Amici Curiae at 25.

9la

by the Supreme Court, and (contrary to the suggestion in

Judge Williams's opinion) Harlow itself gives no indication

that the Court contemplated such an onerous requirement.

Indeed, Judge Williams's opinion completely ignores the fact

that, although the Court in Harlow stated that “insubstantial

suits against high public officials should not be allowed to

proceed to trial," the decision relies on the "firm application

of the Federal Rules of Civil Procedure" to hieve this

objective. Harlow, 457 U.S. at 819-20 n.35 (internal

quotations omitted). Thus, nothing in Harlow gives appellate

courts free-reign to perform their own cost-benefit analysis or

to select new evidentiary standards out of thin air.

Furthermore, the recent case of Leatherman v. Tarrant

County Narcotics Intelligence and Coordination Unit, 507

U.S. 163 (1993), broadly repudiates the use of heightened,

judge-made standards to fulfill policy-related goals such as

those advanced by the judges who view this case differently.

Although Leatherman addressed only claims against

municipalities, it is significant that the Court explicitly

rejected the justifications for a heightened standard that had

been offered by the defendants, and instead insisted that the

Federal Rules remain the sole touchstone for determining the

sufficiency of the plaintiffs case. As the Court stated,

additional requirements can be imposed only “by the process

of amending the Federal Rules, and not by judicial

interpretation.” /d. at 168.

Finally, my colleagues’ attempt to justify a clear and

convincing evidence standard by reference to New York Times

Co. v. Sullivan, 376 U.S. 254 (1964), is in vain. In that case,

nothing less than the First Amendment's guarantee of freedom

of the press was at stake, and the Court concluded that this

vital interest, enshrined in the Bill of Rights, justified a

heightened evidentiary burden. See, e.g., id., at 270 ("[W]e

consider this case against the background of a profound

92a

national commitment to the principle that debate on public

issues should be uninhibited, robust, and wide-open....").

Given that there is no analogous constitutional right

protecting public officials from lawsuits, this case cannot

possibly qualify as a "cognate" area of law.

Despite the complete lack of judicial precedent or evidence

that an alternative judicial remedy is either appropriate or

necessary, the judges who view this case differently have

reached out and attempted to devise new rules of law that

would have devastating consequences in many civil rights

lawsuits. Thus, at precisely the moment that we have finally

dispensed with our absurd and anomalous direct-evidence

rule, some members of the court would once again concoct an

arbitrary and unfair evidenti

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