Amicus Curiae Brief — Crawford-El v. Britton

No. 96-827

IN THE

SUPREME COURT OF THE

OCTOBER TERM, 1997

LEONARD ROLLON CRAWFORD-EL.

Petitioner,

PATRICIA BRITTON, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF THE AMERICAN CIVIL LIBERTIES

UNION AND THE AMERICAN CIVIL LIBERTIES

UNION OF THE NATIONAL CAPITAL AREA

AS AMICI CURIAE

IN SUPPORT OF PETITIONER

STEVEN R. SHAPIRO ARTHUR B. SPITZER

AMERICAN CIVIL Counsel of Record

LIBERTIES UNION ACLU FUND OF THE

FOUNDATION NATIONAL CAPITAL AREA

125 Broad Street 1400 20th Street, N.W.

New York, N.Y. 10004 Washington, D.C. 20036

(212) 549-2611 (202) 457-0800

August 14, 1997 v

Il FAIR APPLICATION OF THE FEDERAL RULES

OF CIVIL PROCEDURE AMPLY PROTECTS

GOVERNMENT OFFICIALS FROM

UNJUSTIFIED DISCOVERY. ................. 18

A. The Federal Rules cannot be modified on an

OG ROCSUIE ...5 . s,s sa00-00-aes ane 19

B. The Federal Rules give district judges broad

authority to limit or deny discovery in

ere ea ee 20

Ill REQUIRING VICTIMS OF CONSTITUTIONAL

TORTS TO MEET AN EXTRAORDINARY STANDARD

OF PROOF IS UNJUSTIFIED, UNNECESSARY,

AND UNPRECEDENTED. ............:e00e0: 24

A A heightened evidentiary standard should be

used to protect individual constitutional rights,

B. The same evidentiary standard should apply

in unconstitutional motive cases against

government officials as in analogous cases

against government officials and the

Quvernant GE .. |. o-.:64 tweebbces caren 27

CORCCLANIIINS «occ cence dhhuneeeeeee ae

-iii-

TABLE OF AUTHORITIES

CASES

Addington v. Texas, 441 US. 418(1979) .....__. 26.27

Anderson v. Liberty Lobby, Inc.,

ee .. 13, 14,22

Behrens v. Pelletier, 116 S. Ct. 834(1996) ........ 11,13

Bivens v. Six Unknown Fed. Narcotics Agents,

403 U.S. 388(1971) ............. Pa ahire: See

Board of County Comm'rs v. Brown,

117 S. Ce. 1382 (1996) ........... a

Board of County Comm'rs v. Umbehr,

116 S. Ct. 2342(1996) ss 9

Branch v. Tunnell, 937 F.2d 1382 (9th Cir 1991),

cert. denied, 114. Ct.2704(1994) 21

Branti v. Finkel, 445 U.S. 507(1980) _.. 9

Budden v. United States, 15 F 3d 1444 (8th Cir 1994) 28

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .. 12,21. 22

City of Mobile v. Bolden, 446 U.S. 55 (1980) . a

Clinton v. Jones, 117 §. Ct. 1636 (1997) “ ey

Crawford-El v. Britton, 93 F.3d 813

4 tight | passim

Cruzan v. Missouri Dep't of Health,

497 U.S. 261(1990) ........... ACD 25

Davis v. Passman, 442 U.S. 228 (1979) . “ cae

Department of Agric. v. Moreno, 413 U.S. $28 (1973) 9

Elliott v. Thomas, 937 F 2d 338 (7th Cir 1991) . 14, 21. 22

Estelle v. Gamble, 429 U.S. 97 (1976) ___.. bs ae

Glen Eden Hosp., Inc. v. Blue Cross and

-IV-

Blue Shield of Michigan, Inc.,

740 F.26 423 (Gth Cw. 1984) .................. 22

Harlow v. Fitzgerald, 457 US. 800 (1982) ........ passim

Johnson v. Jones, 515 U.S. 304(1995) ........ 11, 13, 15

Kimberlin v. Quinlan,

Ses ey Bs GE oi. oc We whadees danke 28

Leatherman v. Tarrant County Narcotics Intelligence

and Coordination Unit, 507 U.S. 163 (1993) .... 4, 20

Martin v. D.C. Metro. Police Dept.,

812 F.2d 1425 (D.C. Cir. 1987) ............. —

New York Times v. Sullivan, 376 U.S. 254 (1964) _..... 26

Nixon v. Fitzgerald, 457 U.S. 731 (1982) ............. 2

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) .. 26, 27

Pueblo Neighborhood Health Ctrs. v. Losavio,

847 F.2d 642 (10th Cir 1988) ................. 21

Rankin v. McPherson, 483 U.S. 378 (1987) ........... 4

Resolution Trust Corp. v. North Bridge Assocs.,

22 F.3d 1198 (ist Cir. 1994) ............... 22, 23

Roberts v. National Health Corp.,

963 F. Supp. $12 (D.3.C. 1997) ................ 27

Romer v. Evans, 116 S. Ct. 1620 (1996) .............. o)

Santosky v. Kramer, 455 U.S. 745 (1982) ............ 26

Scaria v. Rubin, No. 1072, 96-6211,

ots By eo ee ot ee 27

Schneiderman v. United States, 320 U.S. 118 (1943) ... 26

Shapiro v. Thompson, 394 U.S. 618 (1969) ........... 9

Sheppard v. Beerman, 94 F 3d 823 (2d Cir 1996) _...... 5

Siegert v. Gilley, 500 U.S. 226(1991) ...... 4, 12, 21, 22

Speiser v. Randall, 357 U.S. 513 (1958) _.............9

St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) ... 27

-V-

Texas Dep't. of Community Affairs v. Burdine,

a Re See 27

Village of Arlington Heights v. Metropolitan Hous. Dev.

a u

Washington v. Davis, 426 U.S. 229(1976) ........__. a

Waters v. Churchill, 511 U.S. 661 (1994) ...._.. 5, 15, 16

Wayte v. United States, 470 U.S. 598 (1985) ......_. 10

Weinberger v. Weisenfeld, 420 U.S. 636(1975) ........ 9

Wilson v. Seiter, 501 U.S.294(1991) ............. cs 3

Woodby v. Immigration and Naturalization Service,

SET ee 26

Wyatt v. Cole, 504 U.S. 158 (1992) ......... = gaa hie 12

Young v. Selsky, 41 F.3d 47 (2d Cir. 1994) ........... 16

STATUTES

Be IE Sik chk weld Ba ci. w < oe Wha 19

SE Ir, SED A SOs te es ts passim

RULES

Federal Rule of Civil Procedure 26 ..__. ies Bios Gin 23

Federal Rule of Civil Procedure 56... si«si«t. _. . passim

DR LE i ae a 2

MISCELLANEOUS

10A Charles A. Wright, et al., Federal Practice and

Procedure, § 2741 (2d ed. 1983 & Supp. 1997) _._. 22

6 James W. Moore, Moore's Federal Practice,

-Vi-

{ 56.24 (2d ed. 1996 & Supp. 1997) ............ 22

9 Wigmore on Evidence § 2498 (3d ed. 1940)... .... 27, 28

63C Am. Jur. 2d, Public Officers and Employees,

ED 6c jceacs eb ee Che abee st) cceves'’ 16

Administrative Office of the United States,

Judicial Business of the United States Courts:

1996 Report of the Director, Table C-4 (1996)... .. 17

Christopher J. Mumola & Allen J. Beck, Bureau of Justice

Statistics Bulletin, “Prisoners in 1996” (June 1997) . 18

Kit Kinports, “Qualified Immunity in Section 1983 Cases:

The Unanswered Questions, 23 Ga. L. Rev. 597

RSPEI RE SS “i¢.g Rs, Te 11

William P. Kratzke, “Some Recommendations Concerning

Tort Liability of Government and its Employees for

Torts and Constitutional Torts,” 9 Admin.

eH & |) REE eee aoe 16

Petition for a Writ of Certiorari, Crawford-El v. Britton,

Bi: DET COMO A, HOOD cies cccccness 23

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

No. 96-827

LEONARD ROLLON CRAWFORD-EL,

Petitioner,

Vv.

PATRICIA BRITTON, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF THE AMERICAN CIVIL LIBERTIES

UNION AND THE AMERICAN CIVIL LIBERTIES

UNION OF THE NATIONAL CAPITAL AREA AS

AMICI CURIAE IN SUPPORT OF PETITIONER

2

INTEREST OF AMICI CURIAE'

The American Civil Liberties Union ("ACLU") is a

300,000 members that, since its founding in 1920, has been

of all Americans. Toward that goal, the ACLU has frequently

represented individuals in Bivens and § 1983 actions seeking

damages against government officials who have violated their

rights. The American Civil Liberties Union of the National

Capital Area is the Washington, D.C., affiliate of the ACLU and

has been involved in many cases involving claims against

government officials for violations of constitutional rights.

Indeed, both the ACLU and its affiliates have been involved

in some of the leading cases setting the legal standards for such

actions, both as direct counsel and as amicus curiae, including

Harlow v. Fitzgerald, 457 U.S. 800 (1982), and Nixon v.

Fitzgerald, 457 U.S. 731 (1982).

STATEMENT OF THE CASE

Petitioner is a District of Columbia prisoner whv sued the

respondent D.C. prison guard for damages, alleging -- with

circumstantial evidentiary support -- that the guard violated his

First Amendment nghts by causing several boxes of his belong-

ings, including active legal papers, to be misdelivered in

retaliation for his statements to the press, his filings of griev-

ances and lawsuits, and his assistance to other prisoners in filing

grievances.

' Letters of consent to the filing of this brief have been lodged with the

Clerk of the Court pursuant to Sup. Ct. R. 37.3(a).

3

The district court dismissed the complaint because it did not

meet the D.C. Circuit’s now-abandoned requirement that a

plaintiff must plead “specific direct evidence of [the defendant’s

unlawful] intent.” Pet. App. Sec. 128a. The court of appeals,

rehearing the case en banc, abandoned the “direct evidence”

requirement, vacated the dismissal, and remanded the case for

further proceedings.

Although its decision was fractured, a majority of the lower

court ruled that a plaintiff in an unconstitutional motive constitu-

tional tort case must establish the defendant’s unconstitutional

motive by clear and convincing evidence both at summary

judgment and at trial. It is arguable that a majority uf the court

also ruled that in order to postpone decision on a defendant’s

pre-discovery motion for summary judgment under Fed. R. Civ.

P. 56(f), a plaintiff in such a case must show more concretely

than plaintiffs in all other cases that discovery is likely to lead to

evidence that will prove the plaintiff's case by clear and

convincing evidence.

SUMMARY OF ARGUMENT

In Harlow v. Fitzgerald, 457 U.S. 800 (1982) and subse-

quent cases, the Court struck a careful balance between the

rights of individuals to vindicate their constitutional rights in

Bivens and § 1983 cases, and the rights of government officials

to be protected from meritless lawsuits. Government officials

enjoy a qualified immunity in these cases, but individuals who

overcome this immunity may pursue their claims consistent with

the normal pleading, discovery, and summary judgment stan-

dards set forth in the Federal Rules of Civil Procedure.

The decision below upsets this carefully wrought balance

A majority of the judges properly concluded that the district

court should determine on remand whether the plaintiff could

4

make a sufficient showing under Rule 56(f) of the Federal Rules

of Civil Procedure to obtain discovery before responding on the

merits to the defendants’ motion for summary judgment.

However, several of the opinions also suggest that special, more

in civil mghts cases involving unconstitutional motive, see

Crawford-El v. Britton, 93 F.3d 813, 819 (D.C. Cir. 1996)

(Williams, J.), 833-34 (Silberman, J, concurring), 841

(Ginsburg, J., concurring). That approach is irreconcilable with

the Federal Rules and with the policies underlying Bivens and

§1983 cases.

In Leatherman v. Tarrant County Narcotics Intelligence

and Coordination Unit, 507 U.S. 163, 166-67 (1993), this Court

made clear that the federal courts have no authority to alter the

Federal Rules of Civil Procedure for particular categories of

cases, whether at the pleading stage (as in Leatherman) or at the

discovery and summary judgment stage (as here). Like plaintiffs

in all other civil suits, Bivens and §1983 plaintiffs who have

made “specific, nonconclusory factual allegations” in a Rule

56(f) affidavit are entitled to a reasonable opportunity to conduct

discovery. See Siegert v. Gilley, 500 U.S. 226, 235 (1991)

(Kennedy, J., concurring in the judgment).

can prove by a preponderance of the evidence that defendants

violated their clearly established constitutional right to be free

from unconstitutionally motivated governmental action should

be denied a damages remedy. The unprecedented “clear and

convincing evidence” standard that the majority fashioned would

preclude recovery in substantial cases, contrary to the purpose

of the qualified immunity doctrine, which is to protect govern-

ment employees only from insubstantial cases, see Harlow, 457

U.S. at 819.35, and contrary to the constitutional design that

5

values individual rights at least as much as the convenience of

government employees.

Part I of this brief demonstrates that the current qualified

immunity rules, combined with a fair application of the Federa!

Rules of Civil Procedure, provide sufficient protection to shield

government officials from meritless cases. The balance should

not be shifted in defendants’ favor without a solid demonstration

-- absent in this record -- that frivolous cases are resulting in

significant discovery and unnecessary trials and that an expanded

immunity defense is both necessary and tailored to prevent such

abuse. Part II shows that extraordinary restrictions on the ability

of Bivens and § 1983 plaintiffs to obtain discovery and resist

summary judgment do not meet this standard because they

would violate the Court’s precedents rejecting ad hoc amend-

ments to the Federal Rules, and they would create unjustified

obstacles to vindication of clearly established constitutional

rights. Part III establishes that the “clear and convincing

evidence” standard would transgress basic constitutional values

and settled legal standards.’

? This bnef does not address the second Question Presented, which asks

whether a government official should be immune “if she asserts a legitimate

justification” for her action, even if the evidence clearly shows the real reason

was an unconstitutional one. Pet. at i (emphasis added). In the court of

appeals, only Judge Silberman advanced this rule, and neither the District of

Columbia nor the United States as amicus supported it. Such a rule would be

inconsistent with Waters v. Churchill, 511 U.S. 661, 684 (1994) (Souter, J,

concurring) (“A pubbe employer who did not really believe that the employee

engaged in disruptve or otherwise punishable speech can assert no legitumate

interest strong enough to justify chilling protected expression.”), and it would

also be inconsistent with the prevailing view in other circuits, see, ¢.g.,

Sheppard v. Beerman, 94 F 3d 823, 827 (2d Cir. 1996). Moreover, such a

rule would essentially cloak government officials with absolute -- rather than

qualified -- ummunity in cases where hability tums on motive. By definition,

(continued...)

6

ARGUMENT

A STRONG JUSTIFICATION IS REQUIRED FOR

ANY ADDITIONAL RESTRICTIVE CONDITIONS

ON THE ABILITY TO RECOVER DAMAGES FOR

VIOLATIONS OF CLEARLY ESTABLISHED

CONSTITUTIONAL RIGHTS

The qualified immunity available to government officials,

coupled with a fair application of the Federal Rules of Civil

Procedure, protects government officials from meritless Bivens

and § 1983 lawsuits, while permitting victims of governmental

overreaching to vindicate their individual constitutional rights.

See Harlow, 457 U.S. at 819 n.35. The goal of qualified

immunity is not to insulate officials from all liability, but only to

protect them from the burdens of insubstantial lawsuits:

‘insubstantial’ suits against high public officials should not be

allowed to proceed to trial.” /d (internal citations omitted).

The qualified immunity created by Hariow prevents plaintiffs

from proceeding without alleging violations of clearly established

constitutional nghts, and the Federal Rules of Civil Procedure

enable defendants to block discovery or tral by plaintiffs who

have concocted claims without any adequate factual basis.

These protections save government officials from the burden of

litigating meritless claims and allow them to exercise the

discretion necessary to do their jobs.

Any claim that these protections should be significantly

expanded requires, at the very least, a showing that the existing

*(...contunued)

the “objective” facts in such cases also are consistent with a lawful motive or

intent, and the official (with the help of her government lawyers) could

aruculate, post hac, a constitutional reason for her action.

7

rules are not adequate to protect government employees fron

meritless lawsuits. No such showing has been made. The

interests of individuals in obtaining effective relief for violations

of clearly established constitutional rights are no less worthy of

protection than the interests of government officials. Plaintiffs

in Bivens and § 1983 lawsuits already face substantial, unique

burdens in prosecuting their claims. Any rule that makes it

more difficult for plaintiffs to prevail will have the effect of

precluding recovery in meritorious cases. See Crawford-E] at

839 (Ginsburg, J., concurring). As a result, there is no basis for

even considering an expansion of the qualified immunity defense

without a solid demonstration that frivolous cases are resulting

in significant discovery and unnecessary trials, and that an

expanded defense is reasonably tailored to prevent such abuse.

A. An effective damages remedy is essential for

violations of clearly established constitutional

rights by government officials, including those

who act from unconstitutional motives.

Effective protection of constitutional rights and individual

liberties is at the core of the American constitutional system.

That is why Congress created a damages remedy under 42

U.S.C. § 1983 for individuals whose federal constitutional or

statutory rights are violated under color of state law, and why

this Court recognized the right to a damages remedy when

federal officials violate the constitutional nghts of individuals.

“In situations of abuse of office, an action for damages may offer

the only realistic avenue for vindication of constitutional

guarantees.” Harlow, 457 U.S. at 814. In many of these cases,

“it is damages or nothing.” Bivens v. Six Unknown Fed.

Narcotics Agents, 403 U.S. 388, 410 (1971). The need for an

effective remedy is particularly urgent because a government

“agent acting -- albeit unconstitutionally -- in the name of the

United States possesses a far greater capacity for harm than an

individual . . . exercising no authority other than his own.”

Bivens, 403 U.S. at 392. Without a meaningful remedy, these

constitutional rights would be rendered meaningless.

Not only does a damages remedy provide relief to victims

of constitutional violations, but it also holds government

employees and employers accountable and deters unconstitu-

tional behavior Because governments often indemnify employ-

ees in these cases (see page 11, infra), the damages remedy

to establish policies and practices to ensure that employees

comply with clearly established constitutional principles,

especially where no waiver of sovereign immunity has occurred.

Removing the restraining effect of Bivens and § 1983 suits

would risk substantial “unconstitutional mischief.” Crawford-

El, 93 F.3d at 840 (Ginsburg, J., concurring). To vindicate

rights and discourage violations, therefore, it is essential to

preserve an effective constitutional damages remedy against

government officials who violate clearly established constitu-

tional rights.

The availability of a remedy is no less important when the

constitutional claim turns on the motives of governmental

defendants than on their conduct. In a wide variety of circum-

governments from taking adverse action against individuals for

unconstitutional reasons. Denying the on.y meaningful remedy

of damages in these cases would give government officials what

amounts to a license to violate these clearly established constitu-

tional rights.

One group of individuals who would be severely impacted

by unwarranted curtailment of unconstitutional motive cases

9

consists of actual and prospective government employees

Government employees are protected from demotion, firing or

other retaliation because of race, gender, age, religion, political

affiliation or expression, or other improper reasons, and

applicants for government employment are also protected from

such discrimination. E.g., Washington v. Davis, 426 U.S. 229

(1976) (race), Davis v. Passman, 442 U.S. 228, 231 (1979)

(gender); Branti v. Finkel, 445 U.S. 507 (1980) (political

affiliation); and Rankin v. McPherson, 483 U.S. 378 (1987)

(protected speech). Likewise, government contractors are

protected from government officials acting for unconstitutional

reasons. E.g., Board of County Comm'rs v. Umbehr, 116 S. Ct.

2342 (1996) (civil remedy available to independent contractors

terminated for constitutionally protected speech). These clearly

established constitutional rights would be nullified if government

employees and contractors could not effectively pursue motive-

based suits to discovery and trial.

Other categories of individuals have an equal need for

damages remedies to vindicate their clearly established constitu-

tional rights to be free from unconstitutionally motivated

government action. Beneficiaries and potential beneficiaries of

a broad range of governmental programs are protected from

unconstitutionally motivated governmental action. E.g., Romer

v. Evans, 116 S. Ct. 1620 (1996) (denial of government

protection from discrimination), Village of Arlington Heights

v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977) (denial

of zoning changes), Weinberger v. Weisenfeld, 420 U.S. 636,

645 (1975) (denial of Social Security benefits); Department of

Agric. v. Moreno, 413 U.S. 528 (1973) (denial of food stamps),

Shapiro v. Thompson, 394 U.S. 618, 627 n.6 (1969) (denial of

welfare payments); and Speiser v. Randall, 357 U.S. 513 (1958)

(denial of tax exemptions). Moreover, the Constitution bars

government officials from interfering with voting and speech

10

rights because of political or religious views or because of sex,

race, or other status. E.g., City of Mobile v. Bolden, 446 U.S.

55 (1980). Those under the care and supervision of the

government, such as patients in public institutions and prisoners,

also receive constitutional protection. For instance, the

Constitution protects them from retaliation for the exercise of

their First Amendment rights, and patients and prisoners

subjected to inhumane institutional conditions or denied medical

treatment deserve compensation if they can prove “deliberate

indifference” on the part of an institution’s employees. £.g.,

Wilson v. Seiter, 501 U.S. 294 (1991) (inhumane prison

conditions); Estelle v. Gamble, 429 U.S. 97 (1976) (denial of

medical treatment). In addition, it is well-settled that the

government may not make prosecutorial decisions for unconsti-

tutional reasons, such as the desire to suppress protected speech.

E.g., Wayte v. United States, 470 U.S. 598 (1985) (selective

prosecution).

Because the nghts protected are so fundamental, demands

for additional restrictions on cases alleging unconstitutionally

motivated violations of clearly established constitutional nghts

should be carefully and skeptically scrutinized.

B. Government officials facing constitutional tort

claims do not need additional protection because

they can rely on the reasonable and significant

safeguards already in place.

barriers to recovery designed to protect defendants from

insubstantial claims, and these restrictive rules have achieved

their intended purpose. Any further limitations would disrupt

the balance established in Harlow and subsequent cases at the

1]

expense of meritorious lawsuits alleging violations of clearly

established constitutional rights.

Qualified immunity itself restricts the claims plaintiffs can

bring. Under Harlow, plaintiffs suing government officials for

civil damages must allege a violation of a clearly established

constitutional or statutory right or face an immediate adverse

judgment, either on a motion to dismiss or a motion for summary

judgment. This standard protects defendants from having to go

through discovery and trial even if the plaintiff's factual

allegations are true and even if defendants in fact behaved

unconstitutionally, so long as the constitutional guidelines were

not clearly established at the time of defendant’s action. See

Harlow, 457 U.S. at 818 (“If the law at that tirne was not clearly

established, an official could not reasonably be expected to

anticipate subsequent legal developments, nor could he fairly be

said to ‘know’ that the law forbade conduct not previously

identified as unlawful.”). Moreover, defendants asserting

qualified immunity can bring an interlocutory appeal, notwith-

standing the delay resulting from such an appeal. Defendants can

immediately appeal unfavorable decisions on immunity (denials

of motions to dismiss or for summary judgment), so long as they

are based on a question of law rather than fact. Johnson v.

Jones, 515 U.S. 304, 310 (citing Mitchell v. Forsyth, 472 U.S.

511 (1985)); Behrens v. Pelletier, 116 S. Ct. 834, 841 (1996)

(rejecting rule that defendant claim lified j ieten

bring only one interlocutory appeal on immunity issue).

Government employees can also force plaintiffs to adduce

reasonably specific evidence of unconstitutional motive before

plaintiffs may proceed to trial or even discovery. The procedural

device usually employed by defendants in these cases is a pre-

discovery motion for summary judgment. See Kit Kinports,

Qualified Immunity in Section 1983 Cases: The Unanswered

12

Questions, 23 Ga. L. Rev. 597, 652 (1989). Faced with a

summary judgment motion, plaintiffs have two options: Either

they must produce specific, admissible evidence sufficient to

carry their burden of proof at trial; or they must produce

sufficient evidence to justify discovery. Plaintiffs who claim to

need discovery to respond on the merits to summary judgment

motions are not entitled to discovery as a matter of right or

based on a general allegation that government officials operated

Rule 56 that discovery is likely to provide information needed

to support their claim. See Siegert v. Gilley, 500 U.S. 226, 235

(1991) (Kennedy, J , concurring in the judgment). This standard

the burdens of discovery and trial. See page 21, infra.

Even after discovery, plaintiffs face a substantial burden to

defeat summary judgment on the merits. Although the Court in

Harlow was concerned about defendants’ difficulties in obtaining

summary judgment in unconstitutional motive cases, “subse-

quent clarifications to summary-judgment law have alleviated

that problem.” Wyatt v. Cole, 504 U.S. 158, 171 (1992)

(Kennedy, J., concurring). There is less, not more, reason today

than when Harlow was decided to go beyond “firm application”

of the Federal Rules to weed out meritless claims. Harlow, 457

U.S. at 808. Rule 56(c) requires plaintiffs to present evidence

that creates a genuine dispute about a material fact and is

sufficient to support a jury verdict in their favor on that issue.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)

A party loses at summary judgment if the party “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.” Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). These Rule 56 standards give government

officials faced with insubstantial claims that they acted with

13

unconstitutional motives ample opportunity to obtain summary

judgment and make it highly unlikely that meritless lawsuits will

survive to interfere with their job-related duties.

Constitutional claims need not and should not be singled out

for disparate treatment simply because the clearly established

constitutional nghts at issue involve not only what governmental

employees did but why they did it. Motive or intent is a factual

issue, and claims that turn on these facts should be subject to the

same substantive and procedural standards as other kinds of

claims. The qualified immunity standard need not change

because a claim against a government official is based on motive.

Harlow requires an objective inquiry only into whether the

plaintiff has alleged a violation of a clearly established constitu-

tional right. 457 U.S. at 818-19. This objective inquiry does not

depend on the substantive merits of the case because qualified

immunity is ‘ Jistinct from the merits.” Behrens, 116 S. Ct. at

839. “[{A]l.nough sometimes practically intertwined with the

merits, a claim of immunity nonetheless raises a question that is

significantly different from the questions underlying plaintiff's

claim on the merits.” Johnson v. Jones, 515 U.S. 304, 314

(1995). As long as the constitutional right at issue is clearly

established, it should be irrelevant, for immunity purposes,

whether the factual dispute involves motive or some other

contested issue.

That is true notwithstanding the claim that motive is “easy

to allege and hard to disprove.” Crawford-El, 93 F.3d at 821

(Williams, J.). Indeed, that aphorism is entirely misplaced here

because in Bivens and § 1983 cases, the burden is not on

defendants to disprove the plaintiffs’ allegations, but on the

plaintiffs to prove them. More important, the assertion is simply

incorrect. Unconstitutional motive cases are hard cases to bring

and to win in the best of circumstances. The governmental

14

action that gives rise to the claim, by definition, is not inherently

unconstitutional. Unless their defenses are insubstantial,

defendants can identify objective, verifiable factors justifying

their decision to act as they did. Plaintiffs virtually never have

direct evidence of unconstitutional motive, see Elliott, 937 F 2d

at 345, and plaintiffs typically must build a case relying on

circumstantial evidence sufficient to create a genuine factual

dispute and to negate defendants’ evidence of legitimate reasons

for the actions they took.’

Two recent decisions by the Court support the proposition

that constitutional tort cases should not end with summary

judgment and without discovery when genuine factual disputes

exist, including those involving motive. In Johnson v. Jones, the

Court held that qualified immunity decisions made at the

summary judgment stage are immediately appealable, but only

if they turn on the legal issue of whether a constitutional night

is clearly established. 515 U.S. at 316. Ifthe denial of immunity

is based on a factual determination, then the relevant facts must

be determined at trial, and only after trial could the defendant

Court recognized that the resolution of a governmental defen-

dant’s “I didn’t intend it” defense was a factual determination --

the same as the resolution of an “I didn’t do it” defense. /d

(“Many constitutional tort cases . _ . involve factual controver-

sies about, for example, intent.”). The Court understood that

the lack of appealability means that denials of defendants’

motions for summary judgment based upon genuine disputes

° If the defendant submuts an affidavit in support of a summary judgment

motion stating that she acted for constitutionally permissible reasons, the

plaintiff must produce admussible evidence that her motives were illegal, and

the plaintiff cannot rely on generalized attacks on the defendant's credibility

or a claim that the affidavit is self-serving. See Liberty Lobby, 477 US. at

256-57

15

about the material fact of the defendants’ intent would go to

trial. See 515 U.S. at 316 (“We recognize that. __ a district

court's denial of summary judgment . . . forces public officials

to trial”). But the interest in shielding defendants from discovery

or trial in insubstantial cases does not justify extraordinary

restrictions where plaintiffs have specific, genuine factual

grounds for their claims, nor does it warrant exceptions to

procedural and discovery requirements that the Federal Rules

intend to apply in all kinds of cases.

Waters v. Churchill, 511 U.S. 661 (1994), represents a

straightforward application of this approach. The Court

reversed entry of summary judgment for a governmental

employee in a § 1983 case and remanded it for a determination

of whether the plaintiff had been fired because of her potentially

protected statements or for some other reason. /d. at 681. The

plaintiff had “produced enough evidence to create a material

issue of disputed fact about petitioners’ actual motivation.” /d.

The ruling in Waters has not led to a deluge of frivolous § 1983

and Bivens cases.‘

Watersalso illustrates that the Court has narrowly tailored

to particular problems any limitations on recovery in constitu-

tional tort cases. Concerned that governments retain reasonable

flexibility to manage their work forces, the Court held that

governmental employees accused of taking adverse personnel

action based on protected speech are not liable if they acted

reasonably based on the information available to them, even if

* The Court in Waters did not apply a clear and convincing evidence

standard to determine whether the plaintiff had produced enough evidence to

survive summary judgment, thus, the D.C. Circuit's decision to heighten the

burden of proof in unconstitutional motive cases, as discussed at page 19,

infra, also is inconsistent with Waters. 511 U.S. at 681.

16

a jury could later conclude that the information was incorrect,

Waters, 511 U.S. at 667. No sweeping change in evidentiary

burdens or standards was necessary or appropriate to deal with

this limited issue.

Finally, separate statutory protections for government

officials sued because of actions undertaken in their official

capacity significantly reduce any risk that constitutional cases

will unduly interfere with governmental operations and employ-

ment policies. Restrictions on constitutional cases against

governmental officials are intended to avoid any inordinate chill

of their willingness to do their jobs and unwarranted problems

in recruiting and retaining qualified, responsible employees. See

Harlow, 457 U.S. at $14. In fact, civil rights suits usually do not

threaten the personal financial resources of government

employees. Under federal and state indemnification statutes,

governments generally provide attorneys to employees involved

in such suits, and indemnify many damage awards entered

against employees. E.g., Young v. Selsky, 41 F.3d 47, 52 (2d

Cir. 1994) (little personal risk to defendant in § 1983 suit

because representation was provided by state attorney general,

and employee would be indemnified by state for any damages

unless resulting from intentional wrongdoing), see generally

Board of County Comm'rs v. Brown, 117 S. Ct. 1382, 1404

(1997) (Breyer, J., dissenting) (collecting state statutes), William

P Kratzke, Some Recommendations Concerning Tort Liability

of Government and Its Employees for Torts and Constitutional

Torts, 9 Admin. L.J. Am. U. 1105, 1174 n.408 (1996) (collect-

ing federal statutes). Indemnification statutes alleviate the

concern that civil rights suits deter people from entering public

service because they enable government employees “to perform

their functions free of the potential for financial loss suffered as

a result of their job-related pursuits.” 63C Am. Jur. 2d Public

Officers and Employees § 407 (1997). Any limited residual

17

personal risk to governmental employees does not justify

expanding the already substantial restrictions on individuals

seeking remedies for violations of clearly established constitu-

tional rights.

No showing has been made that the current qualified

immunity rules unreasonably expose government officials to

meritless claims. Proponents of expanding qualified immunity

have not demonstrated that motive-based claims are more likely

to be meritless or more likely to escape existing protections

against frivolous lawsuits. The goal of qualified immunity, after

all, is only to protect government officials from the burdens of

meritless lawsuits. Harlow, 457 U.S. at 819 n.35. No evidence

demonstrates that existing rules are inadequate to meet this goal.

Nor does any evidence indicate that most or even many

constitutional tort claims turn on the motives of government

officials, or that motive-based claims are more likely to go to

trial than others.* Without a demonstration that frivolous claims

* To the extent that the concern is with lawsuits brought by prison

inmates, as one of the opinions below seems to suggest, see Crawford-El, 93

F.3d at 830 (Silberman, J., concurring), there has been no showing that

prisoners have filed any significant portion of the cases alleging

unconstitutonal motive. Pnsoner civil rights cases often do not depend on the

motives of prison guards or administrators. For instance, an inmate may sue

for a procedural due process violation when facing disciplinary action without

a hearing, or he may allege unjustified interference with his religious practices

if not permitted to pray when he wishes. These cases do not turn on whether

the motives of the government decision-maker were good or bad, and any

alleged difficulties in weeding out insubstantial cases alleging unconstitutional

motive (difficulties that are, at a minimum, easy to overstate -- see page 14,

supra) do not apply. Furthermore, the percentage of prisoner civil rights cases

that go to tnal is no higher than the percentage of all civil cases that go to tnal

in federal district courts. Administrative Office of the United States Courts,

Judicial Business of the United States Courts: 1996 Report of the Director,

Table C-4, at 159-60 (1997). Although the number of prisoner civil right:

(contunued...)

18

based on unconstitutional motive are clogging the courts and

preventing government officials from doing their jobs, their

immunity need not and should not be expanded.

Il. FAIR APPLICATION OF THE FEDERAL RULES OF

CIVIL PROCEDURE AMPLY PROTECTS GOVERN-

MENT OFFICIALS FROM UNJUSTIFIED DISCOV-

ERY

The Federal Rules of Civil Procedure give district judges

ample discretion to limit the scope of discovery and to prevent

unjustified or unduly burdensome discovery. To the extent any

of the opinions below suggest that special and even more

restrictive discovery rules should apply in Bivens and §1983

cases involving unconstitutional motive, see Crawford-El, 93

F 3d at 819 (Williams, J.), 833-34 (Silberman, J., concurnng),

841 (Ginsburg, J., concurring),® that suggestion should be

rejected as inconsistent with the Federal Rules and with the

*(...contunued)

cases has increased by approximately one-third in the last five years, id. at 139,

the number of prisoners has grown by the same rate in that penod.

Chnistopher J. Mumola & Allen J. Beck, Bureau of Justice Statistics Bulletin,

“Prisoners in 1996" (June 1997)

* Judge Wilhams recommended that a plaintiff lose at summary judgment

“unless, prior to discovery, he offers specific, non-conclusory assertions of

evidence, in affidavits or other matenals suitable for summary judgment, from

which a fact finder could infer the forbidden motive.” Crawford-El, 93 F 3d

at 819 (emphasis added). Judge Silberman advocated his own rule that

defendants prevail at summary judgment if able to assert any objectively

reasonable basis for their actions, but he also suggested that among the other

opimons, he most supported Judge Williams’ approach to the discovery issue.

Id. at 833. It is somewhat unclear whether Judge Ginsburg supported a

heightened discovery standard, although the Solicitor General believes he

does, as discussed at page 23 n.9, infra.

oe ee

19

policies underlying Bivens and §1983 cases. There is no

adequate justification for adopting any standard other than the

existing Federal Rules of Civil Procedure applicable to discov-

ery. Plaintiffs in Bivens and §1983 cases should not face a

unique and unfair obligation to be, in effect, ready for trial even

before they file lawsuit.

The standard applicable to discovery in Bivens and §1983

cases can have an enormous practical impact. As then-Judge

Ginsburg explained, “[a}llowing plaintiffs to raise certain claims

of unconstitutional motive could become an empty gesture were

we to impose a blanket restriction on ai/ discovery prior to the

resolution of the qualified immunity issue on summary judg-

ment.” Martin v. D.C. Metropolitan Police Dept., 812 F.2d

1425, 1437 (DC. Cir 1987). Because the best evidence

concerning the motivation of governmental officials is often

within the control of the government, plaintiffs in cases such as

these need a reasonable opportunity for discovery in order to

have a fair chance to carry their burden of proof. Severe limits

on the ability of plaintiffs to obtain evidence that the purported

justification for governmental action is pretextual would, as a

practical matter, all but preclude recovery, despite the clearly

established nature of the constitutional rights at stake and the

lack of any alternative remedy for victims of government

wrongdoing.

A. The Federal Rules cannot be modified on an ad

hoc basis.

As an initial matter, the federal courts have no authority

(outside the process created by the Rules Enabling Act, 28

U.S.C. §§ 2071-77) to alter the Federal Rules of Civil Procedure

for particular categories of cases. This Court has held that the

Federal Rules mean what they say, and judicial alteration of

20

those rules is unwarranted. Leatherman v. Tarrant County

Narcotics Intelligence and Coordination Unit, 507 U.S. 163,

166-67 (1993) (striking down heightened pleading standard for

certain §1983 cases). If alteration of the Federal Rules is

warranted, it must be accomplished by “amending the Federal

Rules, and not by judicial interpretation. In the absence of such

an amendment, federal courts must rely on summary judgment

and control of discovery to weed out unmeritorious claims.” /d.

at 167.

This principle is as dispositive in the context of discovery

standards as in the context of the pleading standards at issue in

Leatherman. The Federal Rules provide a comprehensive

framework for regulating discovery and adjudicating summary

judgment motions. Federal courts therefore may not devise

special rules for Bivens and § 1983 cases that do not apply to

other categories of cases.

B. The Federal Rules give district judges broad

authority to limit or deny discovery in appropri-

ate cases.

Even if the federal judiciary were empowered to amend the

Federal Rules and impose a different discovery standard on

plaintiffs in unconstitutional motive cases, there would be no

need to do so. The federal rules already protect government

officials from insubstantial unconstitutional motive claims.

Under Rule 56(f), a trial court has broad discretion to

control discovery at the summary judgment stage. When a

plaintiff is faced with a summary judgment motion filed before

she has had the opportunity to take discovery, she can file an

affidavit setting out the need for discovery. If the plaintiff can

set forth “specific, nonconclusory factual allegations,” the tnal

21

court typically should allow the plaintiff to proceed with at least

limited discovery before ruling on the summary judgment

motion.” Siegert, 500 U.S. at 23 (Kennedy, J., concurring in the

judgment); see also id. at 247(Marshall, J., dissenting); Celotex

Corp. v. Catrett, 477 U.S. 317, 326 (1986) (Rule 56(f) allows

a summary judgment motion to be denied or continued "if the

non-moving party has not had an opportunity to make full

discovery"); Liberty Lobby, 477 U.S. at 250 n.5 (summary

judgment should ordinarily be denied when the nonmoving party

“has not had the opportunity to discover information that is

essential to his opposition"); Elliott v. Thomas, 937 F.2d 338

(7th Cir. 1991); Pueblo Neighborhood Health Centers v.

Losavio, 847 F 2d 642, 649 (10th Cir. 1988). To do otherwise

would preclude any meaningful prosecution of even the most

meritorious case -- a plaintiff would be destined to lose on

summary judgment unless she already had sufficient evidence to

bring the case to a jury before any discovery was even taken.

This does not, however, mean that plaintiffs are free to

stantial. If a plaintiff cannot show “a reasonable likelihood that

additional discovery will uncover evidence to buttress the claim,”

the trial court has broad discretion to limit discovery appropri-

” Rule 56(f) does nor require a plaintiff opposing a pre-discovery

summary judgment motion to possess at the outset of the case evidence suffi-

cient to support a favorable jury verdict. If she already possesses the facts

“essental to her opposition,” vocation of Rule 56(f) would be unnecessary,

and she could defeat summary judgment outnght under Rule 56(c) The

requirement that a Bivens plainuff produce specific, nonconclusory factual

allegations in response to a pre-discovery summary judgment motion is less

demanding than the requirement imposed by Rule 56(c) of admussible

evidence sufficient to carry the burden of proof at trial. Branch v. Tunnel,

937 F.2d 1382, 1387-88 (Sth Cir. 1991), cert. denied, 114 S.Ct. 2704 (1994)

The showing that a plaintiff must make to get discovery is less than the

showing necessary to defeat summary judgment and get to tnal.

22

ately or deny discovery altogether. Crawford-El, 93 F.3d at 849

(Edwards, J., concurring in the judgment); see also Siegert, 500

US. at 235 (Kennedy, J., concurring in the judgment); id. at 247

(Marshall, J., dissenting); Celotex, 477 U.S. at 326, Liberty

Lobby, 477 U.S. at 250 n.5. Rule 56(f) requires a plaintiff to

present in ar affidavit a “plausible basis for a belief that discover-

able materials exist” that would be likely to raise a genuine issue

of material fact. Resolution Trust Corp. v. North Bridge

Assocs., 22 F 3d 1198, 1206 (1st Cir. 1994). The party resisting

summary judgment must identify specific facts that she expects

to obtain through discovery, explain how discovery is likely to

lead to those facts, and show that those facts are likely to create

a factual question properly resolved at trial. See 6 James W

Moore, Moore 's Federal Practice, | 56.24, at 56-811 (2d ed.

1996 & Supp. 1997).* If the plaintiff cannot provide some

specific support for general factual allegations in her complaint,

summary judgment is properly granted at that point, allowing the

government official to avoid the burdens associated with full

scale litigation. See Elliott v. Thomas, 937 F.2d 338, 345 (7th

Cir. 1991) (“Unless the plaintiff has the kernel of a casein hand,

the defendant wins on immunity grounds in advance of discov-

ery.”).

The existing Federal Rules thus amply protect government

officials from insubstantial cases, whether a case is based on

* Adjudication of summary judgment mouons before discovery raises

particular problems when knowledge of the relevant facts “is exclusively with

or largely under the control of the moving party.” With a sufficient Rule 56(f)

showing, the party opposing summary judgment should generally be given the

opportunity to obtain those facts through discovery. 6 Moore, supra, § 56.24,

at 56-809. 10A Charles A. Wright, et al., Federal Practice and Procedure,

§ 2741, at 545 (2ded. 1983 & Supp. 1997), Resolution Trust Corp., 22 F.3d

at 1208; Glen Eden Hospital, Inc. v. Blue Cross and Blue Shield of Michigan,

Inc., 740 F.2d 423, 427 (6th Cir. 1984).

23

unconstitutional motive or another claim. There is no need for

the Court to alter the standard applicable to unconstitutional

motive cases and adopt a “special discovery threshold.” On Pet.

for Cert., Opp. Br. for United States at 9.° Trial judges have the

tools available to protect government officials from unmeritori-

ous claims and are in the best position to determine, on a case

by case basis, how to utilize those tools. “[A district judge,

whose experience with the management of discovery is far more

extensive than [that of appellate judges], 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.” Crawford-El, 93

F.3d at 841 (Ginsburg, J., concurring). There is no reason to

doubt that federal judges will perform this task responsibly,

balancing the competing interests of plaintiffs seeking redress for

violations of clearly established constitutional rights, and

government employees faced with unnecessary or excessive

discovery burdens. Trial judges can, and do, routinely limit

discovery using the authority they possess under not only Rule

56(f) but also Rule 26(b) and (c). For example, a judge could

limit discovery to issues going to the heart of the immunity

question, and could restrict the number of depositions and

interrogatories.

__ "Judge Willams clearly endorses a heightened discovery standard in his

opimuon below, and Judge Silberman accepts Judge Williams’ formulation as —

the next best option after his own, which would essentially obviate the need for

any discovery. See page 19 n.6, supra. According to the Solicitor General,

Judge Ginsburg’s opinion in Crawford-El also advocated a heightened

discovery standard Judge Ginsburg would require the plaintiff to demonstrate

a “reasonable likelihood, based upon specific evidence within the plaintiff’ s

command, that discovery will uncover evidence sufficient to sustain a jury

finding in the plaintiff's favor.” Crawford-El, 93 F.3d at 841 (Ginsburg, J,

concurring). Although it is not clear how drastically this formulation differs

from the Federal Rules, the Court should decline to follow it to the extent that

it raises the discovery threshold for unconstitutional motive cases.

24

The Court recently affirmed emphatically that federal judges

can and should make these decisions based on the facts of

individual cases. In Clinton v. Jones, 117 S. Ct. 1636 (1997),

the Court rejected the claim that a sitting President is entitled to

a stay of a civil lawsuit pending during his tenure in office. The

Court understood the discovery and other litigation-related

burdens that may be placed on a President embroiled in litigation

while he attempts to carry out his official duties, but nonetheless

held that it was within the discretion of individual district courts

to weigh the competing interests on a case-by-case basis. Just

as the Court has “confidence in the ability of our federal judges”

to limit intrusive discovery in cases involving the President of the

United States, id at 1652, so can it trust trial judges to firmly

apply the discovery rules in cases involving lower level govern-

ment employees, such as the prison guard here.

Ill. REQUIRING VICTIMS OF CONSTITUTIONAL

TORTS TO MEET AN EXTRAORDINARY STAN-

DARD OF PROOF IS UNJUSTIFIED, UNNECES-

SARY, AND UNPRECEDENTED

The court below fashioned a clear and convincing evidence

standard for plaintiffs whose clearly established constitutional

rights are violated by governmental officials acting with an

improper motive, even though neither party nor the Solicitor

General advocated this standard and no other court has adopted

it. There is no basis to single out these plaintiffs for this

extraordinary burden -- a burden that would apply both at the

summary judgment stage and at trial where any interest of

government officials in not being tried no longer applies.

A “clear and convincing” evidentiary standard would not

further the purpose of the qualified immunity doctrine to nip in

the bud “insubstantial” suits against government officials. See

25

Harlow, 457 U.S. at 819 n.35. By any measure, a case is

substantial if the plaintiff can prove by a preponderance of the

evidence that the defendant violated her clearly established right

to be free from unconstitutionally motivated governmental

action. The “clear and convincing” standard would prevent

these plaintiffs from obtaining any redress. Individuals who

produce specific, admissible evidence sufficient to demonstrate

that their clearly established constitutional rights were more

likely than not violated by government officials motivated by

views, or other illegitimate factors should be allowed to proceed

to tnal and to recover damages.

A. A heightened evidentiary standard should be

used to protect individual constitutional rights,

not limit them.

A standard of proof “instruct[s] the factfinder concerning

the degree of confidence our society thinks he should have in the

correctness of factual conclusions for a particular type of

adjudication,” and also “serves as a societal judgment about how

the risk of error should be distributed between the litigants.”

Cruzan v. Missouri Dep’ of Health, 497 U.S. 261, 282-83

(1990) (internal quotations and citations omitted). “In cases

involving individual nghts, whether criminal or civil, the standard

of proof at 2 minimum reflects the value society places on

individual liberty.” Addington v. Texas, 441 US. 418, 425

(1979) (internal quotations and citations omitted). Imposing an

unusually demanding standard of proof in constitutional tort

cases would proclaim that, in our society, constitutional rights

of individuals are less important than the convenience of

government employees. But the vindication of individual rights

should hold a favored, not disfavored, place in the federal courts

26

That is whv courts have raised the standard of proof in

constitutional cases only to protect, not limit, the vindication of

are at stake. “Exceptions to [the preponderance] standard are

uncommon, and in fact are ordinarily recognized only when the

government seeks to take unusual coe: .iv * action -- action more

dramatic than entering an award ot money damages or other

conventional relief -- against an individual.” Price Waterhouse

v. Hopkins, 490 U.S. 228, 253 (1989). The court below turned

this principle on its head. See Crawford-El, 93 F.3d at 822

(Williams, J.). The cases it invoked to protect the government

from claims by individuals in fact imposed a heightened eviden-

tiary standard to protect individuals from claims by the govern-

ment. These cases include Woodby v. Immigration and

Naturalization Service, 385 U.S. 276, 285 (1966) (clear and

convincing evidence of grounds for deportation because of

“drastic deprivations” resulting from erroneous decision);

Schneiderman v. United States, 320 U.S. 118, 125 (1943) (clear

and convincing evidence in denaturalization proceedings because

“rights once conferred should not be lightly revoked”), Adding-

ton v. Texas, 441 U.S. 418, 425 (1979) (clear and convincing

evidence standard in civil commitment proceedings because of

possibility of “significant deprivation of liberty”), Santosky v.

Kramer, 455 U.S. 745, 747 (1982) (clear and convincing

evidence before a state “may sever completely and irrevocably

the rights of parents in their natural child”); and New York Times

v. Sullivan, 376 U.S. 254, 270 (1964) (clear and convincing

evidence of actual malice in libel suits against public officials

because of First Amendment protection of debate on public

issues )."° It would be unjustified, and unprecedented, to apply

‘© A clear and convincing evidence standard has been used in the civil

context where quasi-criminal conduct 1s at issue, see Crawford-Ei, 93 F 3d at

(continued...)

27

the clear and convincing evidence standard to benefit an alleged

violator of the Constitution.

B. The same evidentiary standard should apply in

unconstitutional motive cases against govern-

ment officials as in analogous cases against

government officials and the government itself.

Imposing an extraordinary evidentiary burden on individuals

in cases involving violations of clearly established constitutional

nghts would be particularly anomalous because no such burden

is imposed in civil cases asserting analogous statutory and tort

claims against both governments and government officials. A

“preponderance of the evidence” standard is the firmly settled

norm in civil cases. See Price Waterhouse, 490 U S. at 253, 9

Wigmore on Evidence § 2498. No general exception exists for

cases against government officials motivated by illegal consider-

ations. The “preponderance” standard applies in sex, age, and

race discrimination cases whether the individual accusing of

making employment decisions for the wrong reasons worked for

a public or private employer. E.g., St. Mary's Honor Cir. v.

Hicks, 509 U.S. 502, 506 (1993) (Title VII racial discrimina-

tion); Zexas Dep t of Community Affairs v. Burdine, 450 U S.

248, 252-53 (1981) (Title VII gender discrimination); Scaria v.

Rubin, No. 1072, 96-6211, 1997 WL 353288 (2d Cir. June 13,

1997) (ADEA and Title VII gender discrimination), Roberts v.

"°(_continued)

822 (Wilhams, J.), but no equivalent reputational stigma attachesin § 1983

or Bivens cases mvolving damages claims against government employees The

justifications for a clear and convincing evidence standard in other contexts

cited below (id, ciung 9 Wigmore on Evidence § 2498 (3d ed. 1940) with

respect to lost wills and oral contracts to make bequests) also have no

applications in § 1983 or Bivens damages cases.

28

National Health Corp., 963 F. Supp. 512, 516 (D.S.C. 1997)

(ERISA benefits discrimination). A variety of statutes provide

a remedy against federal and state governments, and a “prepon-

derance” standard generally applies in those cases even though

they expose government employees to discovery burdens and

adverse personnel actions if liability is found. E.g., Budden v.

United States, 15 F 3d 1444, 1449 (8th Cir. 1994) (Federal Tort

Claims Act).

The anomaly of imposing a “clear and convincing” standard

in constitutional cases but a “preponderance” standard in

statutory and tort cases is heightened because plaintiffs often join

statutory and common law tort claims with their constitutional

tort claims. Crawford-E]l himself, for example, has a state law

conversion claim. See Crawford-El, 93 F 3d at 816 n.1; see also

Kimberlin v. Quinlan, 774 F. Supp. 1 (D.D.C. 1991) (plaintiff

sued prison officials under Bivens, Federal Tort Claims Act and

federal wiretap law), rev'd, 6 F.3d 789 (D.C. Cir 1993), reh'g

en banc denied, 17 F 3d 1525 (D.C. Cir. 1994), vacated and

remanded, 515 U.S. 321 (1995). Since government employees

would still face discovery and other litigation-related burdens

and risks resulting from the claims on which the plaintiff could

proceed under a “preponderance” standard, it would make no

sense to use a heightened evidentiary standard to prevent the

plaintiff from proceeding on related Bivens and § 1983 claims.

Likewise, it would be incongruous for a plaintiff to bear a

heavier evidentiary burden in a damages suit than an injunction

suit. Plaintiffs do not have to overcome qualified immunity to

gain injunctive relief against government officers. See

Crawford-El, 93 F.3d at 831-32 (Silberman, J., concurring).

Thus in suing for an injunction, plaintiffs need not present clear

and convincing evidence in order to survive summary judgment

and proceed to trial In many cases, plaintiffs seek both

29

injunctive and monetary relief. Whether plaintiffs can assert a

claim for monetary relief in addition to, or instead of, a claim for

equitable relief is often merely a matter of chance -- depending

on whether, for example, the defendant manager still supervises

the plaintiff employee, or the defendant guard still oversees the

plaintiff prisoner. The ability to proceed and prevail should not

turn on such fortuity.

A “clear and convincing” standard in unconstitutional

motive cases would not be effective in achieving its purported

rationale. As explained above, it would preclude substantial

qualified immunity defense is directed. Moreover, raising the

evidentiary bar will often not reduce any litigation-related

burdens borne by government employees, a primary concern for

the qualified immunity established in Harlow, 457 U.S. at 814.

The heightened evidentiary standard would apply only to claims

against government employees for damages, and not to claims

for injunctive relief against employees or to claims for damages

from the government itself See page 29, supra. The usual

“preponderance” standard would apply to these other claims.

In many cases, therefore, plaintiffs could proceed with discovery

against, and call as trial witnesses, allegedly responsible

government employees, even though they were not technically

defendants in the case. The effect of the heightened burden

would be not to alleviate the burden of litigation on government

employees, but only to reduce opportunities to vindicate

CONCLUSION

For the reasons stated above, the judgment of the court of

appeals, vacating the dismissal of petitioner’s complaint and

remanding the case for further proceedings, should be affirmed.

30

However, the ruling of the court of appeals that a plaintiff in an

unconstitutional motive constitutional tort case must establish

the defendant’s unconstitutional motive by clear and convincing

evidence both at summary judgment and at trial should be

disapproved, and the Court should make it clear that the Federal

Rules of Civil Procedure apply to govern discovery in such

cases, just as they do in all others.

Respectfully submitted,

ARTHUR B. SPITZER

Counsel of Record

ACLU FUND OF THE

NATIONAL CAPITAL AREA

1400 20th Street, N.W.

Washington, D.C. 20036

STEVEN R. SHAPIRO

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, N.Y. 10004

August 14, 1997