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. ]
6
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.
7
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.
8
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. ]
9
Further, we have been presented with no evidence to indicate that, under these formulations, government officials
10
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. ]
11
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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