WILLIAMS, Circuit Judge: We decided to hear this case en
banc on our own initiative in order to resolve continuing
disputes as to how a government official's assertion of qualified
immunity, as a defense to a damage action for a constitutional
tort, may affect pleading and summary judgment standards where
the unconstitutionality of the official's act turns on his
motive. Our inquiry is framed by the competing goals described
by the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800,
816-18 (1982) -vindicating constitutional rights but at the same
time protecting officials from exposure to discov-
ery and trial
that would unduly chill their readiness to exercise discretion in
the public interest. We here discard our former solution - a
requirement that the plaintiff allege "direct" evidence of
unconstitutional motive. See, e.g., Siegert v. Gilley, 895 F.2d
797 (D.C. Cir. 1990), aff'd on other grounds, 500 U.S. 226
(1991). But we read Harlow as calling for alternative rules to
protect officials. First, we think Harlow allows an official to
get summary judgment resolution of the qualified immunity issue,
including the question of the official's state of mind, before
the plaintiff has engaged in discovery on that issue. Second, we
believe that unless the plaintiff offers clear and convincing
evidence on the state-of-mind issue at summary judgment and
trial, judgment or directed verdict (as appropriate) should be
granted for the individual defendant.
Crawford-El is a prisoner in the District of Columbia's
correctional system serving a life sentence for murder. He filed
the present lawsuit in 1989, claiming that the individual
defendant, Patricia Britton, a D.C. correctional official, and
the District of Columbia had misdelivered boxes belonging to him
containing legal papers, clothes and other personal items,
thereby violating his constitutional right of access to the
courts. When Britton moved for dismissal and for summary
judgment on grounds of qualified immunity, the district court
denied the motion and Britton appealed. We reviewed
Crawford-El's allegations under a "heightened pleading"
requirement, insisting that the plaintiff in such a case advance
"nonconclusory allegations that are sufficiently precise to put
defendants on notice of the nature of the claim and enable them
to prepare a response and, where appropriate, a summary judgment
motion on qualified immunity grounds." Crawford-El v. Britton,
951 F.2d 1314, 1317 (D.C. Cir. 1991) (quotations omitted). By
this standard we found his claims wanting. Because we thought
that our heightened pleading doctrine had become clearer in ways
adverse to plaintiff since his pleading, however, we remanded the
case to the district court in case that court, in its discretion,
should decide to permit repleading. Id. at 1322.
On remand the district court indeed granted permission, and
Crawford-El filed his Fourth Amended Complaint. There he
repleaded the access-to-courts claim, but without adding material
to fill the gap identified in our first opinion. He also pleaded
a due process claim. The district court dismissed both claims,
and a panel of this court affirmed. Crawford-El v. Britton, No.
94-7203, mem. op. at 1-2 (D.C. Cir. Nov. 28, 1995). In addition,
Crawford-El charged that the defendants' alleged misdelivery of
his belongings was in retaliation for various feisty
communications with the press and thus in violation of the First
Amendment. (This claim had initially appeared in his briefing on
the first round in this court. See Crawford-El, 951 F.2d at
1316.) The district court granted the defendants' motion to
dismiss the First Amendment claim as well, saying that the
complaint did not allege "direct" evidence of unconstitutional
motivation and citing Siegert v. Gilley, 895 F.2d 797, 800-802
(D.C. Cir. 1990), aff'd on other grounds, 500 U.S. 226, 231
(1991), our court's most emphatic statement of the "direct"
evidence requirement. Crawford-El v. Britton, No. 89-3076, mem.
op. at 14-15 (D.D.C. Feb. 15, 1994). After affirming dismissal
of the first two claims, the panel suggested, and the court en
banc agreed, that the dismissal of the First Amendment
retaliation claim should be heard by the court en banc. 
[1 Our order for rehearing en banc relates only to the qualified
immunity raised by plaintiff's action against Britton. But the
District of Columbia is, as noted in the text, still in the case.
The district court had dismissed it as a defendant, but since in
his successive amended complaints Crawford-El repeatedly named
the District as a defendant and the District did not object, the
district court held that the District had waived a
law-of-the-case argument and therefore reinstated it as
defendant. Crawford-El v. Britton, No. 89-3076, mem. op. at 1
n.1 (D.D.C. Feb. 15, 1994). Because Crawford-El's claims against
the District do not concern the questions for which we granted
rehearing en banc, they are to be resolved by the panel.
Another extant part of the complaint is a pendant District
law claim for conversion of Crawford-El's property. The survival
of this claim (in the federal courts) turns on whether, after the
remand ordered here, there is any federal claim to which it may
The background law on subjective motivation and qualified immunity.
In Harlow v. Fitzgerald the Court reformulated its test for
officials' qualified immunity in constitutional tort actions.
For acts to which qualified immunity may apply,  it held that
the plaintiff can prevail only by showing not just that there was
a violation, but that defendant's acts violated "clearly
established statutory or constitutional rights of which a
reasonable person would have known." 457 U.S. at 818. It thus
excluded liability where there was a violation (but not of a
right so clearly established that a reasonable person would have
known of it) even when the official acted "with the malicious
intention to cause a deprivation of constitutional rights or
other injury." Id. at 815 (quoting Wood v. Strickland, 420 U.S.
308, 322 (1975)).
The Court was quite explicit as to the purpose of its
change. It noted that claims against officers necessarily
included ones "against the innocent as well as the guilty," and
that among the "social costs" of such suits were "the expenses of
litigation, the diversion of official energy from pressing public
issues, and the deterrence of able citizens from acceptance of
public office." Id. at 814. Last but not least, it invoked
Judge Hand's opinion in Gregoire v. Biddle, 177 F.2d 579 (2d Cir.
1949), which had argued that the fear of being sued would "dampen
the ardor of all but the most resolute, or the most irresponsible
[public officials], in the unflinching discharge of their
duties." 177 F.2d at 581 (quoted in Harlow, 457 U.S. at 814).
It saw the inclusion of liability based on subjective malice as
greatly increasing all these costs.
[2 The qualified immunity defense is unavailable for ministerial acts, see Harlow, 457 U.S. at 816; see also Davis v. Scherer,
468 U.S. 183, 196 n.14 (1984), and unnecessary for acts for which
the officer enjoys absolute immunity, see Harlow, 457 U.S. at
Because such liability
opened up a wide field of inquiry, often with "no clear end to
the relevant evidence" bearing on the official's "experiences,
values, and emotions," and typically not susceptible of
disposition by summary judgment, its resolution was "peculiarly
disruptive of effective government." Id. at 816-17. Most
notably for our purposes, the Court underscored the burdensome
character of discovery flowing from such liability. See id. at
817 (speaking of the "broad-ranging discovery" that would result
from allowing such claims); id. at 818 (speaking of the
resulting "broad-reaching discovery"). Moreover, the Court said,
such liability would thwart what had been its assumption in its
earlier definition of qualified immunity - that "[i]nsubstantial
lawsuits" would be quickly terminated." Id. at 814 (quoting Butz
v. Economou, 438 U.S. 478, 507-508 (1978)). Accordingly the
Court held that qualified immunity could be penetrated only on a
showing of objective unreasonableness - the now familiar
requirement of "clearly established" rights. Id. at 818.
Henceforth, "bare allegations of malice should not suffice to
subject government officials either to the costs of trial or to
the burdens of broad-reaching discovery." Id. at 817-18. The
Court later described Harlow as having "purged qualified immunity
doctrine of its subjective components." Mitchell v. Forsyth, 472
U.S. 511, 517 (1985); see also Davis v. Scherer, 468 U.S. 183,
In fact, under the decisions of every circuit court
addressing the matter, Harlow has not accomplished the stated
purpose. This circuit and others have understood Harlow to allow
inquiry into subjective motivation where an otherwise
constitutional act becomes unconstitutional only when performed
with some sort of forbidden motive (such as, here, the claim that
Britton's decisions routing Crawford-El's parcels were driven by
a desire to penalize his exercise of free speech rights). See,
e.g., Siegert v. Gilley, 895 F.2d at 800-801; Whitacre v. Davey,
890 F.2d 1168, 1171 (D.C. Cir. 1989); Martin v. D.C.
Metropolitan Police Dept., 812 F.2d 1425, 1431 (D.C. Cir. 1987);
Gooden v. Howard County, Md., 954
F.2d 960, 969-70 (4th Cir.
1992) (en banc); Pueblo Neighborhood Health Ctrs., Inc. v.
Losavio, 847 F.2d 642, 649 (10th Cir. 1988); Elliott v. Thomas,
937 F.2d 338, 344-45 (7th Cir. 1991); Branch v. Tunnell, 14 F.3d
449, 452 (9th Cir. 1994); cf. Halperin v. Kissinger, 807 F.2d
180, 186-87 (D.C. Cir. 1986) (noting this court's and others'
decisions to allow unconstitutional motive claims in areas other
than national security). Even though it has entailed many of the
"social costs" of inquiry into subjective motivation stated in
Harlow, courts have concluded that the vindication of
constitutional rights calls for damages liability - often the only
device available for such vindication. Halperin, 807 F.2d at
In Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. 1984), we
recognized the problem, noting that a plaintiff's claim of
unconstitutional motive could easily lead to discovery and trial,
with no hope of success, and the "result would be precisely the
burden Harlow sought to prevent." Id. at 29. We decided that
for claims of which unconstitutional intent was an essential
part, "nonconclusory allegations of evidence of such intent must
be present in a complaint for litigants to proceed to discovery
on the claim. The allegations on this issue need not be
extensive, but they will have to be sufficiently precise to put
defendants on notice of the nature of the claim and enable them
to prepare a response and, where appropriate, a summary judgment
motion on qualified immunity grounds." Id. This did not speak
explicitly to the issue of whether a plaintiff must surmount any
particular burden in order to secure discovery. But in Martin v.
D.C. Metropolitan Police we specifically took the view that the
substantive characteristics of cases involving qualified immunity
and unconstitutional motive required deviation from
garden-variety application of the Federal Rules of Civil
Procedure's liberal pleading and discovery rules. We quoted at
length and with evident approbation from a Fifth Circuit
What is a federal trial judge to do? One thing he may not do:
face it as just another lawsuit in which the notice
liberal policy of F.R. Civ. P. 8 counts on pre-trial discovery to
ascertain the factual basis for the claim[.] ... Allowing
pretrial depositions, especially those taken adversely of the
government official to ferret all of his actions and the reasons
therefor ... would defeat and frustrate the function and purpose
of the ... immunity[.] ... [U]se of liberal discovery to
establish the basis of a claim is directly at odds with the
Court's direction in Harlow that government officials entitled to
immunity [are to] be freed from the burdens, the stress, the
anxieties and the diversions of pretrial preparations.
Martin, 812 F.2d at 1437 (R.B. Ginsburg, J.) (quoting Elliott v. Perez, 751 F.2d 1472, 1479 (5th Cir. 1985)) (footnotes omitted).
Our holding in Martin both imposed a "direct evidence"
requirement and related it to the problem of discovery. To get
to trial, we said, a plaintiff must produce "something more than
inferential or circumstantial support for his allegation of
unconstitutional motive. That is, some direct evidence [of
improper motivation] must be produced...." 812 F.2d at 1435
(emphasis added). But we formulated no explicit rule on
discovery. While we quoted Elliott's exhortation about
protecting officials from "the burdens, the stress, the anxieties
and the diversions of pretrial preparations," we also said that a
complete ban on plaintiff's discovery of defendant before
resolution of qualified immunity issues on summary judgment might
turn the prior decisions allowing plaintiffs to raise claims of
unconstitutional motive into an "empty gesture," id. at 1437, and
that we were "leaving some space for discovery," id. We told
district courts to employ "with particular care and sensibility
their large authority to exercise control over discovery" in
order to balance all the concerns properly. Id. at 1436-37. 
[3 Then-Judge Ginsburg later observed that in Martin the court had
"cut back allowable discovery severely, permitting only a sharply
limited, precisely defined line of inquiry, and even then, only
because of special exigencies in the particular case." Bartlett
v. Bowen, 824 F.2d 1240, 1245 (D.C. Cir. 1987) (R.B. Ginsburg,
J., concurring in denial of rehearing en banc in Martin and
several other cases).]
In Whitacre v. Davey we read Martin to require allegations
of direct evidence of unconstitutional motive to survive a motion
to dismiss and get discovery, 890 F.2d at 1171 & n.4, but the
point was not necessary to the case because the allegations of
circumstantial evidence were inadequate even under the less
demanding standard of Title VII, see id. at 1172. Finally, in
Siegert v. Gilley, 895 F.2d at 802, we specifically held that "in
order to obtain even limited discovery, such [unconstitutional]
intent must be pleaded with specific, discernible facts or offers
of proof that constitute direct as opposed to merely
circumstantial evidence of the intent." The pleading requirement
entailed the discovery consequence: if defendant was entitled to
dismissal of the case in the absence of specific assertions of
direct evidence, there would be no occasion for discovery.
Although the Supreme Court granted certiorari on the question
whether "a "heightened pleading' standard which precludes limited
discovery prior to disposition on a summary judgment motion
violates applicable law," Pet. for Cert. i, quoted in Siegert v.
Gilley, 500 U.S. 226, 237 (1991) (Marshall, J., dissenting), the
Court in fact affirmed on a different, "preliminary" issue,
namely its conclusion that plaintiff had failed to allege a
constitutional violation at all. Id. at 232-35. In Kimberlin v.
Quinlan, 6 F.3d 789, 793-94 (D.C. Cir. 1993), we applied our
"direct evidence" requirement, and denied rehearing en banc with
a flurry of concurring and dissenting opinions, 17 F.3d 1525
(D.C. Cir. 1994). The Supreme Court granted certiorari, 115 S.
Ct. 929 (1995), but then vacated and remanded, 115 S. Ct. 2552
(1995), for consideration in the light of Johnson v. Jones, 115
S. Ct. 2151 (1995), which clarified the circumstances permitting
an interlocutory appeal from denial of a summary judgment motion
by a defendant invoking qualified immunity; we then dismissed
the Kimberlin appeal. No. 91-5315, 1995 WL 759464 (D.C. Cir.
Nov. 8, 1995) (order remanding case to district court).
Because the district court here applied the "direct
evidence" rule, mem. op. at 5 n.4, and found Crawford-El's
complaint wanting, id. at 15-17, the present case calls on us to
decide whether the circuit should continue to apply that rule,
foreclosing discovery unless the pleadings assert "direct
evidence" of illicit motive. We find that question easy, at
least if, as we believe, there are adequate alternative means of
reconciling Harlow's twin purposes in the context of
constitutional torts dependent on the official's having an
improper motive. We first address the drawbacks of the "direct
evidence" rule, and then consider alternative extrapolations from
the logic of Harlow.
Deficiencies of the "direct evidence" requirement.
First, the distinction between direct and circumstantial
evidence has no direct correlation with the strength of the
plaintiff's case. While a perjured claim of having heard a
confession of unconstitutional motive would meet the test, a
massive circumstantial case would not. See Siegert v. Gilley,
500 U.S. at 236 (Kennedy, J., concurring) (rejecting D.C.
Circuit's direct/circumstantial test on this ground); Elliott v.
Thomas, 937 F.2d at 345 (same). Second, the distinction does not
appear calibrated in any other way to the trade-offs found
determinative by the Court in Harlow and qualified immunity
doctrine generally. Although the rule presumably did reduce the
incidence of motive-related damage suits against officers, we
have no reason to think that it did any better as a screen than,
say, a random rejection of nine out of every ten claims. The
abandonment of circuit precedent en banc is of course not to be
lightly undertaken. Critical Mass Energy Project v. NRC, 975
F.2d 871, 875 (D.C. Cir. 1992) (en banc) (quoting Arizona v.
Rumsey, 467 U.S. 203, 212 (1984)). We have noted in
contemplating such overrulings that treatment of the issue in
other circuits is a factor to be considered. Id. at 876. Here,
the only courts to consider our direct evidence rule have
rejected it emphatically, see Elliott v. Thomas; Branch v.
Tunnell, 937 F.2d 1382, 1386-87 (9th Cir. 1991), as have the four
Supreme Court justices who have chosen to speak on the matter.
Siegert v. Gilley, 500 U.S. at 235-36 (Kennedy, J.,
id. at 245-46 (Marshall, J., with whom Blackmun & Stevens, JJ.,
concurred, dissenting). Under the circumstances, we think it
readily justifiable to overrule our precedents establishing the
direct/circumstantial distinction, without even addressing the
question whether formulation of the rule as a pleading
requirement violates the liberal pleading concepts established by
the Federal Rules of Civil Procedure. See Leatherman v. Tarrant
Co. Narcotics Intelligence & Coordination Unit, 507 U.S. 163
(1993) (invalidating heightened pleading requirement invoked by
municipal government unit as defense to constitutional tort, as
violation of Rules 8 and 9(b), but reserving issue of holding's
application to claims against individual government officials).
Alternative protections inferred from Harlow.
In Harlow the Supreme Court assumed that it had established
principles of officer liability that eliminated the litigation
burdens associated with an official's state of mind, or, as it
put the point in Mitchell v. Forsyth, that it had "purged
qualified immunity doctrine of its subjective components." 472
U.S. at 517. For that proposition to be literally true, it would
be necessary to reject any officer liability for constitutional
torts in which the officer's intent is an essential element in
rendering the conduct unconstitutional. See Elliott v. Thomas,
937 F.2d at 344 (carrying out "the program of Harlow" would
require imputing to defendants the best intent they could
possibly have); see also Silberman Op., post (reading Harlow to
extinguish liability for such torts). As Elliott noted, however,
that would eliminate any damage remedy even for "egregious
wrongdoing." 937 F.2d at 344; see also Halperin, 807 F.2d at
186. What, then, does Harlow suggest are appropriate devices to
balance the interest in providing remedies against the interest
in protecting officials from the undue litigation burdens,
including, as Harlow emphasized, discovery itself?
We think the crux of the answer lies at the summary judgment
phase of litigation. It divides into two questions: First, what
methods may plaintiff use to secure evidence to
defendant's motion for summary judgment? Second, must
plaintiff's evidence substantively meet some higher standard than
the conventional preponderance test?
1. Methods available to plaintiff for securing evidence for
purposes of summary judgment resolution of qualified immunity.
The primary burdens of litigation occur in discovery and trial.
If the plaintiff can defer summary judgment while he uses
discovery to extract evidence as to defendant's state of mind,
Harlow's concern about exposing officials to debilitating
discovery will generally be defeated in constitutional tort cases
dependent on improper motive. After describing its objective
test, the Court said, "Until this threshold immunity question is
resolved, discovery should not be allowed." 457 U.S. at 818. We
can protect the sequence apparently insisted upon by Harlow, - no
discovery until there has been at least one cut at the qualified
immunity issue - by the straightforward rule that plaintiff cannot
defeat a summary judgment motion unless, prior to discovery, he
offers specific, non-conclusory assertions of evidence, in
affidavits or other materials suitable for summary judgment, from
which a fact finder could infer the forbidden motive. In his
concurring opinion in Siegert, Justice Kennedy adumbrated this
approach. Observing that "heightened pleading" was inconsistent
with Federal Rules of Civil Procedure 8 and 9(b), he said:
500 U.S. at 236 (emphasis added).
In Elliott v. Thomas, 937 F.2d at 344-46, Judge Easterbrook
spelled out the point in more detail. "Unless the plaintiff has
the kernel of a case in hand [specific, nonconclu-
But avoidance of disruptive discovery is one of the very purposes
for the official immunity doctrine, and it is no answer to say
that the plaintiff has not yet had the opportunity to engage in
discovery. The substantive defense of immunity controls.
Upon the assertion of a qualified immunity defense the
plaintiff must put forward specific, nonconclusory factual
allegations which establish malice, or face dismissal.
which establish the necessary mental state], the defendant wins
on immunity grounds in advance of discovery." Id. at 344-45.
Because the substantive law - the law of qualified immunity per
Harlow - tells the court what is needed for summary judgment,
there is no conflict with Rule 56's provision for summary
937 F.2d at 345 (emphasis added).
This is, of course,
substantially similar in result to the imposition of a
"heightened pleading" standard, in that both prevent serious
invasion of the defendant's time unless the plaintiff can,
without discovery, offer specifics of his case as to defendant's
motivation. See, e.g., Elliott v. Perez; Sawyer v. County of
Creek, 908 F.2d 663, 665, 668 (10th Cir. 1990) (noting that
because plaintiff conceded inability to amend complaint without
discovery, dismissal would be with prejudice).
Although neither Elliott nor Justice Kennedy's concurrence
in Siegert expressly addressed Rule 56(f), which authorizes the
district judge to defer ruling on summary judgment and to provide
for depositions and other discovery, the solution flows from
their analysis of Harlow - its articulation of the substantive
right of qualified immunity. To allow the plaintiff to engage in
discovery, in order to carry his burden of establishing a basis
for inferring improper motive, would violate Harlow's
determination to protect the official from discovery until the
qualified immunity issue has been resolved. Under the Rules
Enabling Act, the Federal Rules of Civil Procedure "shall not
abridge, enlarge or modify any substantive right," 28 U.S.C. §
2072(b), so that any reading of the Rules to trump officials'
substantive entitlements is impermissible.
We note that the rule preventing discovery concerning
illicit motivation does not bar discovery concerning a defendant
official's state of mind for other purposes. A claim for
If a rule of law crafted to carry out the promise of Harlow
requires the plaintiff to produce some evidence, and the
plaintiff fails to do so, then Rule 56(c) allows the court to
grant the motion for summary judgment without ado.
for an allegedly unreasonable search or seizure will often turn
on whether the defendant was in possession of facts that would
have led a reasonable officer to suppose he had probable cause or
exigent circumstances. See, e.g., Anderson v. Creighton, 483
U.S. 635, 640-41 (1987) (relevant question in that case was "the
objective (albeit fact-specific) question whether a reasonable
officer could have believed Anderson's warrantless search to be
lawful, in light of clearly established law and the information
the searching officers possessed") (emphasis added). Although
the Anderson Court appeared to discourage discovery even in that
context, see id. at 646-47 n.6, we do not understand its message
as remotely approaching an absolute bar. Similarly, in Billman
v. Indiana Dep't of Corrections, 56 F.3d 785, 788-89 (7th Cir.
1995), the Seventh Circuit said it would permit discovery to
allow a prisoner to identify the proper defendants in an Eighth
Amendment case where a defendant would be liable if it were shown
that he knew plaintiff's cellmate was HIV-positive and had a
tendency to rape cellmates, and was responsible for the
assignment. The state-of-mind showings the plaintiffs had to
make in Anderson and Billman thus went simply to the defendants'
acquisition of particular facts, not the broader inquiry into
motivation at stake here.  Our case would be equivalent if
Crawford-El had simply to show that Britton knew the boxes
contained legal papers (or something else of value to plaintiff)
and was responsible for their transfer.
[4 Thus, unlike Judge Edwards, see Edwards at 7-8, we do not see
any schism in the Seventh Circuit, between Elliott's requirement
that plaintiff himself supply evidence of defendant's illicit
motivation in order to withstand defendant's summary judgment
motion, 937 F.2d at 345, and Billman's allowing plaintiff
discovery to develop evidence that defendant was aware of facts
that would, if known to defendant, render his conduct violative
of the 8th Amendment. ]
Williams Opinion Continued
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