Crawford-El v. Britton

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-

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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.

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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]


[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 be appended.]

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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, [2] 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 807. ]

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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, 191 (1984).

In fact, under the decisions of every circuit court addressing the matter, Harlow has not accomplished the stated purpose. This circuit and others have understood Harlow to allow inquiry into subjective motivation where an otherwise constitutional act becomes unconstitutional only when performed with some sort of forbidden motive (such as, here, the claim that Britton's decisions routing Crawford-El's parcels were driven by a desire to penalize his exercise of free speech rights). See, e.g., Siegert v. Gilley, 895 F.2d at 800-801; Whitacre v. Davey, 890 F.2d 1168, 1171 (D.C. Cir. 1989); Martin v. D.C. Metropolitan Police Dept., 812 F.2d 1425, 1431 (D.C. Cir. 1987); Gooden v. Howard County, Md., 954

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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 186.

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 decision:

What is a federal trial judge to do? One thing he may not do: face it as just another lawsuit in which the notice

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pleading's liberal policy of F.R. Civ. P. 8 counts on pre-trial discovery to ascertain the factual basis for the claim[.] ... Allowing pretrial depositions, especially those taken adversely of the government official to ferret all of his actions and the reasons therefor ... would defeat and frustrate the function and purpose of the ... immunity[.] ... [U]se of liberal discovery to establish the basis of a claim is directly at odds with the Court's direction in Harlow that government officials entitled to immunity [are to] be freed 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]


[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).]

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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).

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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.,

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concurring); id. at 245-46 (Marshall, J., with whom Blackmun & Stevens, JJ., concurred, dissenting). Under the circumstances, we think it readily justifiable to overrule our precedents establishing the direct/circumstantial distinction, without even addressing the question whether formulation of the rule as a pleading requirement violates the liberal pleading concepts established by the Federal Rules of Civil Procedure. See Leatherman v. Tarrant Co. Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993) (invalidating heightened pleading requirement invoked by municipal government unit as defense to constitutional tort, as violation of Rules 8 and 9(b), but reserving issue of holding's application to claims against individual government officials).

Alternative protections inferred from Harlow.

In Harlow the Supreme Court assumed that it had established principles of officer liability that eliminated the litigation burdens associated with an official's state of mind, or, as it put the point in Mitchell v. Forsyth, that it had "purged qualified immunity doctrine of its subjective components." 472 U.S. at 517. For that proposition to be literally true, it would be necessary to reject any officer liability for constitutional torts in which the officer's intent is an essential element in rendering the conduct unconstitutional. See Elliott v. Thomas, 937 F.2d at 344 (carrying out "the program of Harlow" would require imputing to defendants the best intent they could possibly have); see also Silberman Op., post (reading Harlow to extinguish liability for such torts). As Elliott noted, however, that would eliminate any damage remedy even for "egregious wrongdoing." 937 F.2d at 344; see also Halperin, 807 F.2d at 186. What, then, does 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

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resist the 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:
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.

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-

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sory allegations 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 judgment:

If a rule of law crafted to carry out the promise of Harlow requires the plaintiff to produce some evidence, and the plaintiff fails to do so, then Rule 56(c) allows the court to grant the motion for summary judgment without ado.
937 F.2d at 345 (emphasis added).

This is, of course, substantially similar in result to the imposition of a "heightened pleading" standard, in that both 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

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damages for an allegedly unreasonable search or seizure will often turn on whether the defendant was in possession of facts that would have led a reasonable officer to suppose he had probable cause or exigent circumstances. See, 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. [4] 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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