Crawford-El v. Britton

EDWARDS, Chief Judge, with whom WALD, RANDOLPH, ROGERS, and TATEL, Circuit Judges, concur, concurring in the judgment to remand: Justice Felix Frankfurter once wrote:
[T]he only sure safeguard against crossing the line between adjudication and legislation is an alert recognition of the necessity not to cross it and instinctive, as well as trained, reluctance to do so.
Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 535 (1947). This admonition has been thoroughly lost on my colleagues who have a different view of this case. Without any directive from Congress or mandate from the Supreme Court, my colleagues run roughshod over the Federal Rules of Civil Procedure and invent new evidentiary standards that would make it all but certain that an entire category of constitutional tort claims against government officials - whether or not meritorious - would never be able to survive a defendant's assertion of qualified immunity. This result is both unfathomable and astonishing.

Fortunately, a clear majority of the court agrees that plaintiffs who file constitutional tort claims alleging that governmental officials acted with unconstitutional intent are not obligated to meet any form of heightened pleading standard in their initial complaint. Rather, it is clear that plaintiffs need only adhere to the basic notice pleading requirements of Federal Rule of Civil Procedure 8(c), and need not anticipate an affirmative defense of qualified immunity. Further, the opinions of the court make it clear that we reject any heightened pleading rule that would require plaintiffs to plead direct, rather than circumstantial, evidence.

However, I strongly disagree with Judge Williams's and Judge Henderson's opinions suggesting that, in the face of a defendant's claim for qualified immunity, a plaintiff faces dismissal (even without any discovery) unless he or she can put forward specific, nonconclusory factual allegations establishing the defendant's unconstitutional intent by "clear and convincing" evidence. I similarly reject Judge Silberman's opinion that would go even further and completely rewrite the law to say that a motive-based claim can never survive a


motion to dismiss so long as the defendant's behavior can be seen as consistent with any possible legal motivation, i.e., without regard to whether it can be demonstrated that the presumed legal motivation is not what actually prompted the actions that are at issue.

It is not surprising that these opinions (along with the separate opinion of Judge Ginsburg) can find no safe path to common ground. These opinions offer judgments that are in complete defiance of the Federal Rules of Civil Procedure, inventing evidentiary standards out of whole cloth and overlaying them onto the established procedures for adjudicating lawsuits in our federal courts. Because there is no principled basis for these judgments, the opinions flounder in their rationales and command no majority position. [1] There are some telling similarities in the opinions, for each suffers from the same glaring infirmities: the opinions are completely unmoored to any legislative enactment or Supreme Court precedent, and they are contrary to the law of every other court of appeals in the nation. The net result is judicial activism at its most extreme. Because I believe that this court has no authority to amend the Federal Rules and to ignore established precedent, I reject the positions offered by my colleagues.

A. This Circuit's Jurisprudence

The issue raised by this case is not a new one. Ever since the Supreme Court's opinion in Harlow v. Fitzgerald, 457 U.S. 800 (1982), holding that government officials generally can be held liable for civil damages only if they "violate

[1 Although all members of the court appear to agree that this case must be remanded for further proceedings, the court is sharply divided over the basis for remand. Judge Williams suggests that Judge Ginsburg's opinion (pursuant to which Crawford-El might get discovery) provides a "common denominator" of the reasoning of a majority, as the opinion consistent with the disposition on the narrowest grounds. Whether or not Judge Ginsburg's opinion controls, it is clear that a majority of the court agrees that the trial judge must have discretion to consider the appropriate circumstances under which discovery should be allowed. ]


clearly established statutory or constitutional rights," id. at 818, federal appeals courts have been forced to apply the principles of Harlow to cases in which plaintiffs allege that defendants took action against them with unconstitutional motivation. The difficulty with these cases is that, in some instances,

plaintiffs might allege facts demonstrating that defendants have acted lawfully, append a claim that they did so with an unconstitutional motive, and as a consequence usher defendants into discovery, and perhaps trial, with no hope of success on the merits. The result would be precisely the burden Harlow sought to prevent.
Hobson v. Wilson, 737 F.2d 1, 29 (D.C. Cir. 1984), cert. denied, 470 U.S. 1084 (1985).

In order to prevent frivolous claims from reaching such an advanced stage in the proceedings, the Hobson court required that these motive-based complaints provide "nonconclusory allegations of evidence of such intent" in order to survive a motion to dismiss and proceed to discovery. Id. According to the court, "[t]he allegations on this issue need not be extensive, but they will have to be sufficiently precise to put defendants on notice of the nature of the claim and enable them to prepare a response." Id. Unlike the rule proposed by Judge Williams, this test did not create a new judge-made evidentiary standard, but was simply a "firm application of the Federal Rules of Civil Procedure," as called for by the Supreme Court in Harlow, 457 U.S. at 819-20 n.35 (internal quotation omitted). Moreover, in Hobson, we noted that, "in some circumstances plaintiffs are able to paint only with a very broad and speculative brush at the pre-discovery stage, and that overly rigid application of the rule ... could lead to dismissal of meritorious claims;" we therefore warned district court judges to act cautiously and dismiss only those claims that were "devoid of factual support." Hobson, 737 F.2d at 30-31.

In subsequent cases, this court, while purporting to remain faithful to Hobson, appeared to invent a new requirement, that plaintiffs plead only direct, as opposed to circumstantial,


evidence of defendants' unconstitutional motivation. Given that the Supreme Court has stated that the probative value of circumstantial evidence "is intrinsically no different from testimonial evidence," Holland v. United States, 348 U.S. 121, 140 (1954), and that such evidence can in some cases be "more certain, satisfying and persuasive than direct evidence," Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330 (1960), the so-called direct-evidence rule never has made any sense. I therefore join my colleagues in emphatically rejecting such an illogical and unjustified requirement. I also agree with my colleagues that any evidentiary standard to be applied on a motion for summary judgment must be applied consistently at every subsequent stage of the proceedings before the trial court. Otherwise, as with the direct evidence rule, plaintiffs would face a higher burden to survive a pre-trial motion than they would face in order to prevail at trial.

Having corrected our wrong turn towards a direct-evidence rule, we should not now reach out and invent yet another arbitrary and unjust standard. The correct decision in this case is to return to the sound principles set forth by the court in Hobson.

B. The Hobson Standard

Although this court has sometimes referred to the rule enunciated in Hobson as a "heightened pleading standard," see, e.g., Siegert v. Gilley, 895 F.2d 797, 801 (D.C. Cir. 1990), aff'd on other grounds, 500 U.S. 226 (1991); Smith v. Nixon, 807 F.2d 197, 200 (D.C. Cir. 1986), that label is misleading because application of the Hobson principles does not necessarily affect what the plaintiff must put in the complaint. Indeed, the Supreme Court made it clear in Gomez v. Toledo, 446 U.S. 635, 640 (1980), that, as a matter of substantive law, "two " and only two " allegations are required in order to state a cause of action" under 42 U.S.C. 1983 (1994). A plaintiff must allege only that the defendant "has deprived him of a federal right" and has "acted under color of state or territorial law." Gomez, 446 U.S. at 640. A defendant's qualified immunity is an affirmative defense, and, therefore, "the burden of pleading it rests with the defendant" under the Federal Rules, which provide that the defendant must


plead any " 'matter constituting an avoidance or affirmative defense.' " Id. (quoting FED. R. CIV. P. 8(c)). Thus, pursuant to Gomez, a plaintiff has no obligation to anticipate or respond to a potential qualified immunity defense in the initial complaint.

Once the defendant actually asserts the qualified immunity defense, however, the court must then determine whether the plaintiff can offer a sufficient factual basis to support the allegations of unconstitutional animus and therefore overcome qualified immunity. Under the Federal Rules, there are a number of appropriate mechanisms available by which the plaintiff can provide this additional factual support. For example, pursuant to Rule 7(a), [2] the plaintiff may file a reply that sets out the plaintiff's evidence relevant to immunity and the material that the plaintiff claims is reasonably likely to lead to pertinent additional evidence. See Schultea v. Wood, 47 F.3d 1427, 1432-33 (5th Cir. 1995) (en banc). Alternatively, the plaintiff may file an amended complaint [3] or a more definite statement, [4] or the court can use its discretionary power over discovery under Rule 26(b) to limit initial discovery to a brief interrogatory concerning the plaintiff's evidence relevant to immunity. [5] In any of these scenarios, the trial court is able to evaluate the nature of the plaintiff's allegations concerning unconstitutional intent, prior to ruling on a defense motion for summary judgment.

[2 Federal Rule of Civil Procedure 7(a) states that "the court may order a reply to an answer or a third-party answer."]

[3 Federal Rule of Civil Procedure 15(a) permits a party to amend its complaint at any time "by leave of court."]

[4 Federal Rule of Civil Procedure 12(e) permits a Motion for More Definite Statement if a pleading "is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading."]

[5 Federal Rule of Civil Procedure 26(b)(2)(iii) permits the court to alter the limits on discovery if the trial judge determines that "the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues." ]


Thus, rather than refer to the Hobson test as a heightened pleading requirement, I agree with Judge Easterbrook that we should "speak instead of the minimum quantum of proof required todefeat the initial motion for summary judgment." Elliott v. Thomas, 937 F.2d 338, 345 (7th Cir. 1991), cert. denied, 502 U.S. 1121 (1992). Under the principles enunciated in Hobson, plaintiffs can survive an initial motion for summary judgment, prior to discovery, by providing "nonconclusory allegations of evidence" of the defendant's unconstitutional intent.

Hobson also rightly recognized that the courts should be cautious in applying this standard, lest meritorious claims be dismissed. For example, it will sometimes be the case that the relevant evidence is in the possession of the defendant and is therefore unavailable to the plaintiff without further discovery. Thus, if the plaintiff can show a reasonable likelihood that additional discovery will uncover evidence to buttress the claim, the trial judge may invoke Rule 56(f) and deny the summary judgment motion. [6]

These procedures are part of the standard apparatus provided by the Federal Rules to enable trial judges in civil suits to differentiate meritorious claims from frivolous ones, and the Supreme Court has never suggested that this same apparatus is somehow inadequate when it comes to the particular immunity concerns expressed in Harlow. Indeed, as Justice Kennedy has pointed out, the objective standard for qualified immunity articulated in Harlow was based on the

[6 Federal Rule of Civil Procedure 56(f) expressly grants the trial judge broad discretion to order discovery prior to ruling on a summary judgment motion, where the party opposing the motion cannot "present by affidavit facts essential to justify the party's opposition." This court has explicitly held that the decision whether or not to stay discovery pursuant to Rule 56(f) is committed to the sound discretion of the District Court. White v. Fraternal Order of Police, 909 F.2d 512, 517 (D.C. Cir. 1990). Yet, the new evidentiary standard proposed by Judge Williams would effectively strip the trial judge of this discretion, by denying any discovery to plaintiffs unless they can provide "clear and convincing" evidence prior to discovery. ]


fact that the standards for summary judgment at the time "made it difficult for a defendant to secure summary judgment regarding a factual question such as subjective intent." Wyatt v. Cole, 504 U.S. 158, 171 (1992) (Kennedy, J., concurring). Now, however, "subsequent clarifications to summary-judgment law have alleviated that problem, by allowing summary judgment to be entered against a nonmoving party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.' " Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). As a result, Rule 56 is now more than adequate to dispose of unmeritorious claims without appellate judges taking it upon themselves to invent new evidentiary standards designed to address particular categories of cases.

C. The Proposed Standard

Judge Williams's opinion argues that its Draconian rule requiring "clear and convincing" evidence is necessary to vindicate the substantive right of qualified immunity. I am inclined to agree with the view of the Seventh Circuit that "it is hard to depict a "right not to be tried' " as a substantive, rather than procedural, right. Elliott, 937 F.2d at 345. However, even were I to assume that qualified immunity is a substantive right, there is no valid justification for requiring plaintiffs to satisfy a "clear and convincing" evidence test in the cases here at issue. Indeed, there is great irony in the judgment offered by those judges who subscribe to Judge Williams's opinion, for the new rule that they propose would have a devastating impact on potential plaintiffs who already face substantial burdens in attempting to pursue civil rights claims. Recognizing these burdens, Chief Judge Posner has argued that there is a "peculiar perversity" in imposing a heightened standard in cases involving prison inmates because "it is far more difficult for a prisoner to write a detailed complaint than for a free person to do so" due to the fact that prisoners have no power to investigate their claims and gather evidence prior to obtaining discovery. Billman v. Indiana Dep't of Corrections, 56 F.3d 785, 789-90 (7th Cir.


1995); see also Kit Kinports, Qualified Immunity in Section 1983 Cases: The Unanswered Questions, 23 GA. L. REV. 597, 647 (1989) (The author argues that, in a case where the motive underlying a defendant's actions is a fact solely within the knowledge of the defendant, a court could not fairly grant defendant's motion for summary judgment before plaintiff has been given an opportunity to conduct discovery on this issue.). Thus, with regard to such cases, the standard proposed by Judge Williams, while purporting to permit some intent-based qualified immunity claims, would, as a practical matter, make it virtually impossible for these claims ever to survive a motion to dismiss. See David Rudovsky, The Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights, 138 U. PA. L. REV. 23, 63 (1989) ("Where the plaintiff must establish the culpability element as part of the constitutional claim, denial of discovery on this issue would make it impossible to prove certain cases.").

In reading the opinions by Judge Williams and Judge Henderson, one is left with the impression that a "clear and convincing" standard is deemed necessary because, without it, some plaintiffs in section 1983 cases might actually prevail on their claims. Yet, it is overwhelmingly clear that the Court in Harlow never for a moment intended to insulate government officials from liability in all cases where the official's state of mind is a necessary element of the constitutional violation alleged. In fact, in Harlow itself the plaintiff alleged that the defendants had violated his First Amendment rights by dismissing him in retaliation for testifying before a congressional committee. As then-Judge Ruth Bader Ginsburg has pointed out,
[h]ad the Court intended its formulation of the qualified immunity defense to foreclose all inquiry into the defendants' state of mind, the Court might have instructed the entry of judgment for defendants ... on the constitutional claim without further ado. In fact, the Court returned the case to the district court in an open-ended remand, a disposition hardly consistent with a firm intent to delete the state of mind inquiry from every constitutional tort calculus.


Martin v. District of Columbia Metro. Police Dep't, 812 F.2d 1425, 1432 (D.C. Cir.), vacated in part, 817 F.2d 144 (D.C. Cir.), reinstated, 824 F.2d 1240 (D.C. Cir. 1987).

Moreover, if a "clear and convincing" evidence standard were truly necessary to vindicate defendants' alleged substantive right not to be tried, as some of my colleagues seem to believe, one wonders why no other circuit has seen fit to embrace such a rule. Indeed, although nearly every other federal appeals court in the nation has addressed the precise issue that we face today, not one has adopted a standard even approaching the positions offered by my colleagues who view this case differently. Instead, all ten circuits that have addressed the issue have adopted formulations that are essentially identical to the one laid out in Hobson and echoed in Justice Kennedy's concurrence in Siegert v. Gilley, 500 U.S. 226, 236 (1991) (Kennedy, J., concurring) ("Upon the assertion of a qualified immunity defense the plaintiff must put forward specific, nonconclusory factual allegations which establish malice, or face dismissal."). [7]

[7 Although some of the circuit courts have actually adopted some form of so-called "heightened pleading" requirement and have chosen to test the plaintiff's claims at the complaint stage (an approach that I believe runs counter to Gomez), the more important point is that, regardless of when they apply the test, the courts have been quite consistent in articulating the appropriate evidentiary burden. See Blue v. Koren, 72 F.3d 1075, 1084 (2d Cir. 1995) ("[T]he plaintiff must proffer particularized evidence of direct or circumstantial facts ... supporting the claim of an improper motive in order to avoid summary judgment."); Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3d Cir. 1988) ("The dual policy concerns of protecting state officials from a deluge of frivolous claims and providing state officials with sufficient notice of the claims asserted to enable preparation of responsive pleadings have led us to impose on section 1983 claims the additional pleading requirement that the complaint contain a modicum of factual specificity, identifying the particular conduct of defendants that is alleged to have harmed the plaintiffs." (internal quotation omitted)), cert. denied, 489 U.S. 1065 (1989); Gooden v. Howard County, Md., 954 F.2d 960, 969-70 (4th Cir. 1992) (en banc) ("To avoid evisceration of the purposes of qualified immunity ... plaintiffs alleging unlawful intent ... [must] plead specific facts in a nonconclusory fashion to survive a motion to dismiss."); Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995) (en banc) ("The district court need not allow any discovery unless it finds that plaintiff has supported his claim with sufficient precision and factual specificity to raise a genuine issue as to the illegality of defendant's conduct at the time of the alleged acts."); Veney v. Hogan, 70 F.3d 917, 922 (6th Cir. 1995) (Plaintiff must respond to an assertion of qualified immunity with "specific, non-conclusory allegations of fact that will enable the district court to determine that those facts, if proved, will overcome the defense of qualified immunity."); Elliott v. Thomas, 937 F.2d 338, 344-45 (7th Cir. 1991) ("[T]he plaintiff [is required] to produce specific, nonconclusory factual allegations which establish the necessary mental state, or face dismissal." (internal quotation and alteration omitted)), cert. denied, 502 U.S. 1121 (1992); Edgington v. Missouri Dep't of Corrections, 52 F.3d 777, 779 (8th Cir. 1995) ("Complaints seeking damages against governmental officials ... are subject to a heightened standard of pleading with sufficient specificity to put defendants on notice of the nature of the claim."); Branch v. Tunnell, 937 F.2d 1382, 1387 (9th Cir. 1991) ("We believe a requirement that a plaintiff must put forward nonconclusory allegations of subjective motivation ... satisfies Harlow's directive that government officials should be shielded from "insubstantial' lawsuits, while at the same time preserving the opportunity for plaintiffs to pursue meritorious claims."); Walter v. Morton, 33 F.3d 1240, 1243 (10th Cir. 1994) ("To survive a summary judgment motion, a plaintiff must point to specific evidence showing the official's actions were improperly motivated."); Oladeinde v. City of Birmingham, 963 F.2d 1481, 1485 (11th Cir. 1992) ("In pleading a section 1983 action, some factual detail is necessary."), cert. denied, 507 U.S. 987 (1993). The First Circuit has not adopted a particular formulation of the standard, but instead has made it clear that intent-based claims can be sufficient to overcome qualified immunity, see Feliciano-Angulo v. Rivera-Cruz, 858 F.2d 40, 46 (1st Cir. 1988), and has indicated that motions for summary judgment in qualified immunity cases will be handled under the Federal Rules just like any other case, see Alexis v. McDonald's Restaurants of Mass., 67 F.3d 341, 348-49 n.7 (1st Cir. 1995). Thus, no other federal jurisdiction operates under a standard even approaching the harshness of the positions endorsed by the judges who view this case differently. ]


Further, we have been presented with no evidence to indicate that, under these formulations, government officials


around the country are being subjected to intolerable litigation burdens from intent-based civil rights suits or that district court judges are routinely permitting frivolous claims to go forward. [8] Indeed, it is worth noting that neither the Solicitor General nor the government defendants themselves even advocated a "clear and convincing" evidence standard in their submissions to this court. [9]

A rule requiring plaintiffs to meet a higher evidentiary standard in qualified immunity cases has never been endorsed by the Supreme Court, and (contrary to the suggestion in Judge Williams's opinion) Harlow itself gives no indication that the Court contemplated such an onerous requirement. Indeed, Judge Williams's opinion completely ignores the fact that, although the Court in Harlow stated that "insubstantial suits against high public officials should not be allowed to proceed to trial," the decision relies on the "firm application of the Federal Rules of Civil Procedure" to achieve this objective. Harlow, 457 U.S. at 819-20 n.35 (internal quotations omitted). Thus, nothing in Harlow gives appellate courts free-reign to perform their own cost-benefit analysis or to select new evidentiary standards out of thin air.

Furthermore, the recent case of Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507

[8 To the contrary, at least one empirical study of constitutional tort litigation concludes that "the image of a civil rights litigation explosion is overstated and borders on myth." Theodore Eisenberg & Stewart Schwab, The Reality of Constitutional Tort Litigation, 72 CORNELL L. REV. 641, 643 (1987).]

[9 Although the brief of J. Michael Quinlan and Loye W. Miller, Jr., as amici curiae, does suggest a "clear and convincing" standard as a possible alternative to the direct evidence rule, amici offer no legal precedent requiring or supporting such a standard, arguing instead that, as a policy matter, the proposed standard would be appropriate given "the venerable principle that government officials are presumed to act in good faith. Brief of J. Michael Quinlan and Loye W. Miller, Jr. as Amici Curiae at 25. ]


U.S. 163 (1993), broadly repudiates the use of heightened, judge-made standards to fulfill policy-related goals such as those advanced by the judges who view this case differently. Although Leatherman addressed only claims against municipalities, it is significant that the Court explicitly rejected the justifications for a heightened standard that had been offered by the defendants, and instead insisted that the Federal Rules remain the sole touchstone for determining the sufficiency of the plaintiff's case. As the Court stated, additional requirements can be imposed only "by the process of amending the Federal Rules, and not by judicial interpretation." Id. at 168.

Finally, my colleagues' attempt to justify a clear and convincing evidence standard by reference to New York Times Co. v. Sullivan, 376 U.S. 254 (1964), is in vain. In that case, nothing less than the First Amendment's guarantee of freedom of the press was at stake, and the Court concluded that this vital interest, enshrined in the Bill of Rights, justified a heightened evidentiary burden. See, e.g., id., at 270 ("[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open...."). Given that there is no analogous constitutional right protecting public officials from lawsuits, this case cannot possibly qualify as a "cognate" area of law.

Edwards Opinion - Continued
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