Amicus Curiae Brief — Kimberlin v. Quinlan

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No. 93-2068

OFFICE oF 3

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

BRETT C. KIMBERLIN,

‘ Petitioner,

J. MICHAEL QUINLAN, 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, THE AMERICAN CIVIL LIBERTIES

UNION OF THE NATIONAL CAPITAL AREA,

THE AMERICAN JEWISH CONGRESS AND

TRIAL LAWYERS FOR PUBLIC JUSTICE

AS AMICI CURIAE IN SUPPORT OF PETITIONER

STEVEN R. SHAPIRO ANTHONY C. EPSTEIN

AMERICAN CIVIL Counsel of Record

LIBERTIES UNION MARK D. HARRIS

FOUNDATION JODIE L. KELLEY

132 West 43rd Street JENNER & BLOCK

New York, N.Y. 10036 601 13th Street, N.W.

(212) 944-9800 Washington, D.C. 20005

(202) 639-6000

March 1, 1995

(Additional Counsel Listed on Inside Cover)

ARTHUR B. SPITZER MARC D. STERN

ACLU FUND OF THE AMERICAN JEWISH

NATIONAL CAPITAL AREA CONGRESS

1400 20th Street, N.W. 15 E. 84th Street

Washington, D.C. 20036 New York, N.Y. 10028

(202) 457-0800 (212) 879-4500

LESLIE A. BRUECKNER

TRIAL LAWYERS FOR

PUBLIC JUSTICE, P.C.

1717 Mass. Ave., N.W.

Suite 800

Washington, D.C. 20036

(202) 797-8600

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................. ii

oS” a Sa 2

STATEMENT OF THE CASE ................ 3

SUMMARY OF ARGUMENT ................ 4

EE 7

IMPOSING HEIGHTENED PROCEDURAL

AND EVIDENTIARY BURDENS ON

BIVENS PLAINTIFFS IS INCONSISTENT

WITH THE FEDERAL RULES OF CIVIL PROCE-

DURE AND THIS COURT'S PRECEDENTS .... 7

Ag aa 22

li

TABLE OF AUTHORITIES

CASES Page

Anderson v. Creighton, 483 U.S. 635 (1987) ...... 14

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

Pe 5s yy ee a ae 12

Arlington Heights v. Metropolitan Housing Develop-

ment Corp., 429 U.S. 252 (1977) ........ 11

Bivens v. Six Unknown Federal Narcotics Agents,

ae Gh EOUEED | 6055 Ko S dc awKees 5, 17

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

cert. denied, 114 S. Ct. 2704 (1994) .... 9, 15

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

Conley v. Gibson, 355 U.S. 41 (1958) ........... 10

Crutcher v. Kentucky, 883 F.2d S02 (6th Cir.

Saas re aed 0 ea ae eb oo on Ke 9

Davis v. Passman, 442 U.S. 228 (1979) .......... 5

Davis v. Scherer, 468 U.S. 183 (1984) ........... 7

Elliott v. Perez, 751 F.2d 1472 (Sth Cir. 1985) ..... 10

Elliott v. Thomas, 937 F.2d 338 (7th Cir. 1491) 9, 14, 16

Farmer v. Brennan, 114 S. Ct. 1970 (1994) ....... 11

First National Bank of Arizona v. Cities Service

oe ts Fy, || re 19

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

Shield of Michigan, Inc., 740 F.2d 423 (6th

eB ere eT oer eT Tere 13

Gomez v. Toledo, 446 U.S. 635 (1980) .......... 11

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

Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. 1984) . 10, 18

Holland v. United States, 348 U.S. 121 (1954) ..... 9

ee |

ili

Kimberlin y,. Quinlan, 774 F. Supp. 1 (D.D.c.

ihn ene ee 4,21

Kimberlin y, Quinlan, 6 F.3d 789 (D.C. Cir. 1993),

reh’g en banc denied, 17 F.3d 1525 (D.C.

with, A ae 4

Leatherman y,. Tarrant County Narcotics Intellj-

gence & Coordination Unit, 113 S. Ct.

gate sisinn AE ER AG 10, 11

Martin v. D.C. Metropolitan Police Department, 812

F.2d 1425 (D.C. Cir. 1987), vacated in

part, 817 F.2d 144 (D.C. Cir. 1987),

reinstated sub nom, Bartlett v. Bowen,

824 F.2d 1240 (D.C. Cir. 67) ...... 18, 20

Michalic vy. Cleveland 2 ankers, Inc., 364 U.S. 325

inde rt ne ae 9

Mitchell v. Forsyth, 472 U.S. §1] :) a 7, 14

Nixon y. Fitzgerald, 457 U.S. 73] >: ie aera 2

Pueblo Neighborhood Health Centers y. Losavio,

847 F.2d 642 (10th Cir. nn. aoe ee 14

Resolution Trust Corp. v. North Bridge ASSOCS.,

22 F.3d 1208 (ist Cir. cots: oe eee 13

Siegert v. Gilley, 111 S. Ct. 1789 1.) rn 14, 17

United States v. Lam Kwong-Wah, 924 F.2d 298

(D.C. Cir. 1991), cert. denied, 113 S. Ct.

wihnin MrT es 9

United States v, National Treasury Employees Union,

63 U.S.L.W. 4133 (U.S. Feb. 22, Pe sss 2

Wayte v. United States, 470 U.S. 598 (1985)... 11

RULES

Federal Rule of Civil Procedure 8 .......... 10, 14

Federal Rule of Civil Procedure 9 ............. 10

Federal Rule of Civil Procedure 56 ......... passim

MISCELLANEOUS

10A C. Wright, A. Miller & M. Kane, Federal Practice

and Procedure § 2741 (1983) ........... 13

6 pt.2 J. Moore, Moore’s Federal Practice | 56.24

of ) Peers ee rrr rr ee 13, 20

K. Kinports, Qualified Immunity in Section 1983

Cases: The Unanswered Questions, 23 Ga.

Ue dt. ere eer ee 11

No. 93-2068

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

BRETT C. KIMBERLIN,

Petitioner,

v.

J. MICHAEL QUINLAN, 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, THE AMERICAN CIVIL LIBERTIES

UNION OF THE NATIONAL CAPITAL AREA,

THE AMERICAN JEWISH CONGRESS AND

TRIAL LAWYERS FOR PUBLIC JUSTICE

AS AMICI CURIAE

IN SUPPORT OF PETITIONER

2

INTEREST OF AMICI’

The American Civil Liberties Union (“ACLU”) is a

nation-wide, nonprofit, nonpartisan organization with

nearly 300,000 members that, since its founding in 1920,

has been devoted to protecting the constitutional rights of

all Americans. Toward that goal, the ACLU has frequent-

ly represented individuals in civil actions seeking damages

against government officials who have violated their

constitutional 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. The ACLU and its affiliates have

been involved in numerous Bivens actions before this

Court, 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).

The American Jewish Congress is an organization of

American Jews founded in 1918 to protect the civil,

political and economic rights of Jews. It has frequently

found it necessary to engage in litigation to preserve these

rights and not infrequently finds itself in those cases in the

position of petitioner -- convinced that a wrong has been

perpetrated but needing additional evidence to complete

its proof of a violation of law. The rule of law applied

here by the D.C. Circuit would deny the American Jewish

Congress and those it represents a day in court.

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

Clerk of the Court pursuant to Rule 37.3.

J)

3

Trial Lawyers for Public Justice (“TLPJ") is a national

public interest law firm that marshals the skills and

resources of trial lawyers to create a more Just society.

Through litigation and work with the broader public

interest community, TLPJ seeks to challenge governmen-

tal, corporate, and individual wrongdoing, guard access to

the courts, and combat threats to the civil justice system.

TLPJ participates as amicus curiae in this case because it

believes that imposition of a heightened pleading require-

ment in Bivens actions is contrary to the fundamental right

of access to the civil justice system.

STATEMENT OF THE CASE

Four days before the 1988 presidential and vice-

presidential election, and hours before federal inmate

Brett C. Kimberlin was scheduled to hold a group inter-

view with members of the national media to discuss

allegations that he had sold marijuana to candidate Dan

Quayle in the early 1970's, the then-Director of the

Federal Bureau of Prisons, J. Michael Quinlan, cancelled

the interview. Later that day, although Quinlan had never

before made decisions about the segregation of individual

prisoners, he personally ordered Kimberlin to be placed

in administrative detention, where he was unable to

communicate with the media. Quinlan’s office had

consulted with respondent Loye Miller, a senior Justice

Department official, to whom the Bush-Quayle campaign

had repeatedly complained about Kimberlin’s ability to

communicate with the press while incarcerated. Prison

Officials again placed Kimberlin in detention the day

4

before the national election, and yet again a few weeks

later.

Kimberlin filed this Bivens action alleging that Quinlan

and Miller prevented or punished his exercise of First

Amendment rights, and that respondents’ conflicting and

inconsistent explanations for their actions were pretexts.

Respondents moved for summary judgment before

Kimberlin took any discovery. The district court denied

the motion, and lifted its earlier stay of discovery relating

exclusively to the Bivens claims, based on its finding that

Kimberlin had offered “nonconclusory” and “tangible”

factual allegations in support of his claims. Kimberlin v.

Quinlan, 774 F. Supp. 1, 6 (D.D.C. 1991). On respondents’

interlocutory appeal, the Court of Appeals reversed,

holding over a vigorous dissent that petitioner failed to

meet the Circuit’s heightened pleading, or heightened

production, standard requiring direct as opposed to

circumstantial evidence that respondents had acted with

an impermissible motive. Kimberlin v. Quinlan, 6 F.3d 789

(D.C. Cir. 1993), reh’g en banc denied, 17 F.3d 1525 (D.C.

Cir. 1994). This Court granted certiorari on January 20,

1995. 115 S. Ct. 929 (1995).

SUMMARY OF ARGUMENT

This case presents a question of substantial practical

importance in Bivens actions: in what circumstances may

a plaintiff alleging violation of clearly established constitu-

tional rights proceed with at least limited discovery when

a defendant government official makes a pre-discovery

motion for summary judgment? Rule 56(f) of the Federal

5

Rules of Civil Procedure defines these circumstances,

allowing a plaintiff to Proceed with discovery if she: offers

nonconclusory factual allegations indicating that discovery

is likely to produce additional evidence sufficient to

Support a jury verdict in her favor. As several courts of

appeals and Justices of this Court have indicated, this

Standard, and the district courts’ authority over discov-

ery, provide ample Protection for blameless Officials

Seeking relief from unjustified discovery burdens. No

distortion of the Federal Rules through any heightened

pleading requirement is justified. All that is necessary or

appropriate is “firm application of the Federal Rules of

Civil Procedure” as they are written. See Harlow v. Fitz-

8erald, 457 U.S. 800, 819 n35 (1982) (quoting Butz yv,

Economou, 438 US. 478, 508 (1978)).

The Rule 56(f) standard strikes the appropriate

balance between the legitimate interests of Bivens plaintiffs

and Bivens defendants. “An agent acting -- albeit uncon-

Stitutionally -- in the name of the United States POssesses

a far greater Capacity for harm than an individual . . . exer-

cising no authority other than his own.” Bivens v. Six

Unknown Fed. Narcotics Agents, 403 U.S. 388, 392 (1971).

Moreover, for individual victims of unconstitutional

conduct, “it is damages or nothing,” and a right without

a remedy is not a right at all. Jd. at 4102 It is therefore

(1979) (*{U]nless such rights are to become merely precatory, the class

of those litigants who allege that their own constitutional rights have

(continued...)

6

essential to preserve an effective constitutional remedy

against government officials who violate clearly established

constitutional rights. This standard gives Bivens plaintiffs,

like plaintiffs in other kinds of cases, a reasonable oppor-

tunity to conduct appropriate discovery before they are

forced to respond to the merits of a summary judgment

motion.

At the same time, Rule 56(f) protects government

officials from the unjustified burden of defending spurious

suits. It prohibits Bivens plaintiffs from subjecting officials

to extensive discovery based on nothing more than a vague

hope that discovery will produce hard evidence, thereby

permitting courts to resolve “many insubstantial claims on

summary judgment” at the outset of the case. See Harlow,

457 U.S. at 818. Furthermore, trial judges have ample

discretion within the existing framework of the Federal

Rules to weigh any “peculiar{] disrupti[on] of effective

government” in deciding how narrow or broad discovery

should be. See id. at 817.

The standards applicable to Bivens actions should be

developed consistent with one of the most basic principles

on which our Constitution is built: the people need

protection from governmental abuses more than the

government needs protection from the people. The

government poses a far greater threat to individual

liberties than the people pose to governmental preroga-

? (...continued)

been violated . . . must be able to invoke the existing jurisdiction of the

courts for the protection of their justiciable constitutional rights.”).

7

tives. It is the highest duty of the federal courts to

Safeguard the rights of the people against the government.

ARGUMENT

IMPOSING HEIGHTENED PROCEDURAL

AND EVIDENTIARY BURDENS ON

BIVENS PLAINTIFFS IS INCONSISTENT

WITH THE FEDERAL RULES OF CIVIL

PROCEDURE AND THIS COURT’S PRECEDENTS

This is not a case about qualified immunity. The

Standards under which government officials are entitled to

qualified immunity from liability or suit were announced

in Harlow vy, Fitzgerald, 457 U.S. 800 (1982), which held

that qualified immunity depends exclusively on the *objec-

tive legal reasonableness of an official’s conduct as

measured by reference to clearly established law.” Jd. at

818. “No other ‘circumstances’ are relevant to the issue

of qualified immunity.” Davis v, Scherer, 468 U.S. 183, 191

(1984) (citations Omitted). In this Case, respondents have

no qualified immunity defense because the First Amend-

ment right that they allegedly violated was clearly estab-

lished.? See Mitchell vy. Forsyth, 472 U.S. 511, 528 (1985).

Accordingly, this case Presents no occasion for the court

to consider the standards for qualified immunity or the

8

purely legal question of whether the constitutional right

that respondents allegedly violated was clearly established.

Respondents sought summary judgment on the purely

factual issue of whether they had acted with the intent or

purpose of preventing petitioner from speaking with the

press. What this case involves, then, is whether Bivens

plaintiffs should be barred from pursuing discovery that

would be available in any other case to establish the

essential factual elements of their claim.

The answer lies in the Federal Rules of Civil Proce-

dure, which provide a complete and neutral mechanism for

resolving motions for summary judgment. As explained

below, the existing framework of the Federal Rules gives

federal courts ample power to protect federal employees

lacking qualified immunity from the burdens of cases

brought without any substantial factual basis. The Court

need not, and may not, rewrite the Federal Rules to create

any extraordinary standard applicable to motions to

dismiss or for summary judgment in Bivens cases directed

to the kinds of factual issues that federal courts routinely

adjudicate in a variety of cases.

The Direct Evidence Rule. Instead of applying the

Federal Rules as written, the court below held that respon-

dents were entitled to pre-discovery summary judgment

because petitioner failed to produce direct, as opposed to

circumstantial, evidence of respondents’ improper motive.

As petitioner and the United States demonstrate in detail,

any standard based on the notion that circumstantial

evidence has no probative value is wholly unjustified.

9

Circumstantial evidence is “intrinsically no different

from testimonial evidence" and can be “more certain,

Satisfying and persuasive than direct evidence.” Holland

v. United States, 348 US. 121, 140 (1954); Michalic y.

Cleveland Tankers, Inc., 364 US. 325, 330 (1960). Circum-

Stantial evidence alone can be sufficient to prove guilt

beyond a reasonable doubt in a criminal case, United

States v. Lam Kwong-Wah, 924 F2d 298, 303 (D.C. Cir.

1991), cert. denied, 113 S. Ct. 287 (1992), and equally

compelling circumstantial evidence is more than sufficient

in a Bivens case. Moreover, a direct evidence requirement

would effectively bar Bivens actions where motive is an

element because in only the rarest of cases will the

plaintiff have the defendant’s confession of a deliberate

constitutional violation. See Elliott v. Thomas, 937 F.2d

338, 345 (7th Cir. 1991). These reasons explain why

circuits other than the District of Columbia Circuit have

uniformly rejected a direct evidence requirement. See, e.8.,

Branch v. Tunnell, 937 F2d 1382, 1386-87 (9th Cir. 1991),

cert. denied, 114 S. Ct. 2704 ( 1994); Elliott, 937 F.2d at 345;

Crutcher v. Kentucky, 883 F2d 502, 504 (6th Cir. 1989).

The “Heightened Pleading” Requirement. An equally

illegitimate procedural obstacle would be a special

pleading rule that requires extraordinary particularity

solely in Bivens complaints.’ See, e.g., Branch, 937 F.2d

* Although certiorari was granted on the question whether “plaintiffs

in Bivens cases in which unlawful motive is an element of the alleged

offense must satisfy a "heightened pleading standard,”” we agree with

the Solicitor General’s earlier submission that resolution of this question

is not essential to the determination of this case because petitioner

(continued...)

10

at 1386; Elliott v. Perez, 751 F.2d 1472, 1482 (Sth Cir.

1985); Hobson v. Wilson, 737 F.2d 1, 29-31 (D.C. Cir.

1984). Any requirement that the complaint plead un-

constitutional motive with particularity simply cannot be

squared with the language of the Federal Rules or with

this Court’s decision in Leatherman v. Tarrant County

Narcotics Intelligence & Coordination Unit, 113 S. Ct. 1160

(1993).

Rule 8 of the Federal Rules of Civil Procedure

vequires that a complaint include only “a short and plain

siatement of the claim showing that the pleader is entitled

to relief.” Under the notice pleading rule embodied in

Rule 8, plaintiffs are not required to set out in detail the

facts underlying their claims. Conley v. Gibson, 355 US.

41, 47 (1958). Rule 9 sets out the sole exceptions to the

liberal pleading system, and Rule 9(b) specifically provides

that “[mJalice, intent, knowledge, and other condition of

mind of a person may be averred generally.” For the

Same reasons that the Court interpreted these rules to

mean what they say in the context of § 1983 actions

against municipalities, a heightened pleading requirement

in Bivens cases against government officials would be

“impossible to square” with the Federal Rules’ notice-

* (...continued)

provided greater specificity than would be required in a well-pleaded

complaint.

11

pleading approach. See Leatherman, 113 S. Ct. at 1163-

64.

Summary Judgment Procedures. The procedural vehicle

that most defendants use to obtain early resolution of

Bivens cases is not a motion to dismiss under Rule

12(b)(6) for failure to state a claim upon which relief can

be granted, but rather a motion for summary judgment

under Rule 56. See K. Kinports, Qualified Immunity in

Section 1983 Cases: The Unanswered Questions, 23 Ga. L.

Rev. 597, 652 & n.220 (1989). Here, consistent with this

practice, and before discovery began, respondents sought

summary judgment on the “motive* element of petitione-

r’s constitutional claim, that is, the allegation that respon-

dents acted with tie intent to Punish or prevent his

exercise of clearly established First Amendment rights.°

* A heightened pleading requirement would be even more inappropri-

ate in the context of qualified immunity. *[Qlualified immunity is a

defense, [and] the burden of pleading it rests with the defendant.”

of such a defense, surely she cannot be required to plead those facts

with special particularity.

* An essential element of many constitutional violations involves the

intent or motive of the government official. See, e.g., Farmer v. Brennan,

114 S. Ci. 1970, 1977 (1994) (*To violate the cruej and unusual

punishments clause, a prison official must have a ‘sufficiently culpable

state of mind.”*) (citation omitted); Wayte v. United States, 470 U.S. 598

(1985) (selective prosecution claim must be supported by evidence of

12

What standards, then, should be applied when the

defendant in a Bivens case moves for summary judgment

at the beginning of the lawsuit before the plaintiff has had

an opportunity to conduct any discovery? Under the

Federal Rules of Civil Procedure, the plaintiff has two

procedural options. First, under Rule 56(c), she can offer

evidence that creates a genuine dispute about a material

fact. The evidence must be sufficient to support a jury

verdict in her favor on that issue. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251 (1986) (citation omitted).

The trial court's responsibilities in this situation are plain

and, amici believe. undisputed: if the plaintiff can meet

this burden at the initial stages of a case, the trial court

must deny the summary judgment motion and allow the

plaintiff to conduct appropriate discovery to obtain

additional evidence to further strengthen her case.

The plaintiffs other procedural option is to submit a

Rule 56(f) affidavit demonstrating why she does not have

sufficient facts within her possession at that stage of the

case to create a genuine dispute about a material fact.

Under Rule 56(f), the non-movant may offer an affidavit

explaining the reasons why she cannot at that time set forth

facts essential to justify her opposition. The paradigmatic

reason a party would not have such essential facts is that

she has not yet been able to take necessary discovery. See,

e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) (Rule

56(f) allows a summary judgment motion to be denied “if

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

full discovery”); Liberty Lobby, Inc., 477 U.S. at 250 n.5

(same). Adjudication of summary judgment motions

before discovery is especially likely to be unfair when

13

knowledge of the relevant facts ‘is <lusively with or

largely under the control of the moving party.” 6 pt. 2 J.

Moore, Moore's Federal Practice | 56.24, at 56-809 (2d ed.

1993) (“Moore’s Federal Practice"); 10A C. Wright, A.

Miller & M. Kane, Federal Practice and Procedure § 2741,

at 545 (1983) (“Wright, Miller & Kane"). In these circum-

stances, the party opposing summary judgment should be

given the opportunity to obtain those facts through discov-

ery. Moore’ Federal Practice | 56.24, at 56-809; Resolution

Trust Corp. v. North Bridge Assocs., 22 F.3d 1198, 1208 (ist

Cir. 1994); Glen Eden Hospital, Inc. v. Blue Cross & Blue

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

A Rule 56(f) affidavit must do more than merely

assert in conclusory terms a need for discovery. The plain-

tiff must present a “plausible basis for a belief that

discoverable materials exist” that would be likely to raise

a genuine issue of material fact. North Bridge Assocs., 22

F.3d at 1206. Mere speculation or an unexplained “aver-

ment of . . . exclusive knowledge or control of the facts”

by the moving party wiil not suffice. Moores Federal

Practice | 56.24, at 56-811; Wright, Miller & Kane § 2741,

at 548. The non-movant must identify specific facts within

the movant’s control, 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.

Moore’ Federal Practice | 56.24, at 548-52.

The standard Rule 56(f) test that is applied in other

kinds of cases can and should be applied in Bivens actions.

As several Justices of this Court and several courts of

appeals have stated, a Bivens plaintiff should be allowed

14

to proceed with at least limited discovery if she produces

“specific, nonconclusory factual allegations” supporting

her case in response to a pre-discovery summary judgment

motion. See Siegert v. Gilley, 111 S. Ct. 1789, 1795 (1991)

(Kennedy, J., concurring in the judgment); id at 1801

(Marshall, J., dissenting); Elliott v. Thomas, 937 F.2d 338,

344-45 (7th Cir. 1991); Pueblo Neighborhood Health Centers

v. Losavio, 847 F.2d 642, 649 (10th Cir. 1988). This Court

has itself recognized that plaintiffs should be allowed to

conduct discovery “to uncover evidence sufficient to create

a genuine issue as to whether the defendant in fact

committed those acts” that violated clearly established law.

Mitchell v. Forsyth, 457 U.S. 511, 526 (1985); see also

Anderson v. Creighton, 483 U.S. 635, 646-47 n.6 (1987)

(discovery “tailored specifically to the question of...

qualified immunity” should be permitted).

‘When a defendant in a Bivens case, or any other case,

moves for summary judgment before discovery has begun,

Rule 56(f) may require the plaintiff to present factual

allegations more specific than those sufficient to satisfy the

notice-pleading requirement of Rule 8. For example,

although a general allegation of unconstitutional intent is

sufficient to survive a motion to dismiss, it may not be

adequate when the defendant files a summary judgment

motion with supporting evidence indicating the absence of

any illegitimate motive. Thus, a plaintiff alleging malice

would not be able to defeat or delay the defendant's

15

motion for summary judgment with purely conclusory

allegations.’

Equally important, however, the Rule 56(f) standard

does not require the plaintiff to possess at the outset of the

case evidence sufficient to support a favorable jury verdict.

If she already possesses the facts “essential to her Opposi-

tion,” invocation of Rule 56(f) would be unnecessary, and

she could defeat summary judgment outright under Rule

56(c). The requirement that a Bivens plaintiff produce

specific, nonconclusory factual allegations in response to

a pre-discovery summary judgment motion is significantly

less demanding than the burden imposed by Rule 56(c).

Tunnell, 937 F.2d at 1387-88. Put differently, the showing

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

showing necessary to defeat summary judgment and get to

trial. Plaintiffs in Bivens cases should not face a unique

and unfair obligation to be ready for trial even before they

file their lawsuit.

To impose a “heightened” Rule 56(f) test in Bivens

cases would be neither necessary nor appropriate. The

standard Rule 56(f) test gives Bivens plaintiffs a reasonable

opportunity to pursue discovery when they can provide a

non-conclusory basis for their allegations that the defen-

dants did in fact violate their clearly established constitu-

tional rights. Moreover, as shown above, the standard

” The same would be true of the wide variety of legal and equitable

claims -- ¢.g., malicious prosecution, abuse of process, fraud, tortious

interference with contractual relations -- that require allegation and

proof of malice or similar states of mind.

16

Rule 56(f) test provides ample protection for the legiti-

mate interests of Bivens defendants. If the plaintiff cannot

provide some non-conclusory support for the general

factual allegations in her complaint, summary judgment is

properly granted at that point, allowing the defendant to

avoid the burdens associated with full scale litigation. See

Elliott, 937 F.2d at 345 (“Unless the plaintiff has the

kernel of a case in hand, the defendant wins on immunity

grounds in advance of discovery.”).

Government officials have argued that they deserve

special protection because the burdens of Bivens litigation

are simply too great for them to have to bear. Litigation

is undeniably a burden, but it is important to put in

perspective the weight of the burden that will be borne by

federal officials in these cases. The government generally

pays all the costs of defense and provides free legal

representation for its employees. In addition, employees

need not spend significantly more time in connection with

damages cases than in the defense of injunctive cases, yet

no one has ever suggested that plaintiffs seeking injunctive

relief for constitutional violations should have to make

extraordinary showing to obtain the discovery necessary to

prepare their cases.

Moreover, individuals have a broad range of statutory

causes of action against federal officials, including causes

of action that turn on questions of motive and intent, such

as claims of disparate treatment based on race, sex,

national origin, handicap, and so on. Discovery proceeds

every day in such cases under the usual standards of the

Federal Rules of Civil Procedure. Those cases -- undoubt-

Bi reeernetennneentre eee

17

edly far greater in volume than Bivens litigation -- have not

disabled the government from conducting the people's

business. In any event, it would surely stand the Bill of

Rights on its head to hold that the vindication of individu-

al rights protected by the First, Fourth and Fifth Amend-

ments holds a disfavored place in the federal courts

compared to the vindication of rights created by statute.

It is also important to note that Bivens actions can be,

and are, brought against low- as well as high-level federal

employees. See, e.g. Siegert v. Gilley, 111 S. Ct. 1789

(1991) (Bivens action against psychologist at government

hospital). Indeed, the defendants in the Bivens case itself

were non-supervisory federal law enforcement agents. See

Bivens, 403 U.S. at 389. Even if courts should be careful

to avoid undue interference with the important public

business of high officials, courts need not exempt all 1.7

million federal employees (see United States v. National

Treasury Employees Union, 63 U.S.L.W. 4133, 4137 n.13

(U.S. Feb. 22, 1995)) from the Federal Rules of Civil

Procedure.

A heightened Rule 56(f) standard in Bivens cases is as

unwarranted when the factual issues involve the defend-

ant’s state of mind as when they involve her actions. The

rationale used by some courts of appeals for a heightened

standard where motive or intent is at issue is that Harlow

requires some procedural mechanism to weed out cases

where the plaintiff has no significant evidence of illegiti-

mate motive or intent and that summary judgment does

not accomplish this function because defendants can rarely

obtain summary judgment concerning their state of mind.

18

See, e.g., Hobson v. Wilson, 737 F.2a 1, 29 (D.C. Cir. 1984).

Unlike this case, however, Harlow did not involve interpre-

tation or application of the Federal Rules. Rather, it

involved a modification of judicially «rafted immunity rules

so that those rules did not magnify the very risk of

litigation they were designed to avoid. This case, by

contrast, is squarely governed by the Federal Rules of Civil

Procedure. Difficulties that one class of defendants may

have in prevailing under the summary judgment provisions

of the Federal Rules do not justify rewriting the Rules for

their benefit.

In addition, as explained above, Rule 56(f) as written

provides federal courts with all the authority they need to

dismiss at an early stage cases where the plaintiff does not

have a tangible basis for allegations of unconstitutional

motive or intent. To grant summary judgment in the face

of a Rule 56(f) affidavit that sets forth specific, nonconclu-

sory grounds for plaintiffs assertion of improper motive

would deny a significant number of plaintiffs a fair

opportunity to prove their cases. Such a result would

effectively put government employees above the law in the

wide range of circumstances where the Constitution gives

individuals a clearly established right against improperly

motivated government conduct. See note 6 above; see also

Martin v. D.C. Metropolitan Police Dep't, 812 F.2d 1425,

1437 (D.C. Cir. 1987) (R.B. Ginsburg, J.) (“Allowing plain-

tiffs to raise certain claims of unconstitutional motive

could become an empty gesture were we to impose a

blanket restriction on all discovery prior to resolution of

the qualified immunity issue on summary judgment.")

(emphasis in original), vacated in part, 817 F.2d 144 (D.C.

a ne

19

Cir. 1987), reinstated sub nom. Bartlett v. Bowen, 824 F.2d

1240 (D.C. Cir. 1987) (en banc).

Controls on Discovery. In any kind of case, including

Bivens cases, where some discovery into critical factual

issues is warranted, any discovery burdens that are undue

or excessive can be avoided through the district court's

broad authority over the scope of discovery. This judicial

discretion makes even more inappropriate any heightened

Rule 56(f) test in Bivens cases. A plaintiff who satisfies

Rule 56(f) does not necessarily have the right to conduct

unfettered discovery. The Federal Rules give district

judges ample authority to protect Bivens defendants (like

other defendants) with legitimate complaints about the

breadth of the discovery sought by the plaintiff.

According to Rule 56(f) itself, when the non-movant

presents adequate reasons for her inability to defeat the

summary judgment motion without discovery, the court has

several options: “the court may refuse the application for

judgment or may order a continuance to permit affidavits

to be obtained or depositions to be taken or discovery to

be had or may make such other order as is just.” Trial

judges are in the best position to determine how much

discovery is appropriate in light of a plaintiffs specific

factual allegations, and they can control discovery by, for

example, limiting the number or scope of interrogatories

or depositions or the time allowed to complete discovery.

As this Court noted in First Nat'l Bank of Arizona v. Cities

Serv. Co., 391 U.S. 253, 265 (1968), Rule 56(f) “provides

for comparatively limited discovery for the purpose of

showing facts sufficient to withstand a summary judgment

20

motion, [compared to] Rule 26, which provides for broad

pretrial discovery.” See also Moore’s Federal Practice

q 56.24, at 56-808 to -809; Martin, 812 F.2d at 1438

(suggesting district court should permit “particularized

interrogation” of defendants on one critical meeting).

In exercising their discretion over discovery, district

courts should give due weight not only to the legitimate

interests of federal officials in avoiding unduly burdensome

discovery, but also to the legitimate interests of individuals

whose clearly established constitutional rights are at stake.

For the past two decades, Bivens actions have played a

critical role in redressing injuries inflicted by federal

government officials acting totally contrary to their clearly

established constitutional obligations.

_ Maintenance of effective Bivens remedies also deters

lawless overreaching by government officials. No less than

victims of private wrongs, victims of governmental wrongs

deserve a reasonable opportunity to obtain discovery

before adjudication of the merits of their claims. Other-

wise, federal officials would be cloaked with an absolute

immunity that the Court has already deemed inappropri-

ate. See Harlow, 457 U.S. at 808-13. As this Court

recognized in Harlow, “firm application of the Federal

Rules of Civil Procedure” protects against insubstantial

lawsuits. Jd. at 819 n. 35 (citation omitted).

Application of these principles to the facts of this case

is straightforward. The district court applied the appropri-

ate legal standard, asking whether petitioner presented

allegations of “concrete facts” that are “tangible and

21

nonconclusory." Kimberlin v. Quinlan, 774 F. Supp. 1, 6

(D.D.C. 1991). Petitioner satisfied this standard by

presenting factual allegations that met the standard of

Rule 56(c), not just Rule 56(f). To the extent that

discovery on the Bivens claim should be limited to avoid

an undue burden on respondents, the district court has

ample authority to do so on remand.

CONCLUSION

The judgment of the Court below should be reversed.

Respectfully submitted,

STEVEN R. SHAPIRO

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION

132 West 43rd Street

New York, N.Y. 10036

ARTHUR B. SPITZER

ACLU FUND OF THE

NATIONAL CAPITAL AREA

1400 20th Street, N.W.

Washington, D.C. 20036

LESLIE A. BRUECKNER

TRIAL LAWYERS FOR

PUBLIC JUSTICE, P.C.

1717 Mass. Ave., N.W.

Suite 800

Washington, D.C. 20036

ANTHONY C. EPSTEIN

Counsel of Record

MARK D. HARRIS

JODIE L. KELLEY

JENNER & BLOCK

601 13th Street, N.W.

Washington, D.C. 20005

MARC D. STERN

AMERICAN JEWISH

CONGRESS

15 E. 84th Street

New York, N.Y. 10028