Leonard Rollon Crawford-El v. Patricia Britton and the District of Columbia

Before: EDWARDS, Chief Judge, WALD, SILBERMAN, BUCKLEY, WILLIAMS, GINSBURG, SENTELLE, HENDERSON, RANDOLPH, ROGERS TATEL, Circuit Judges. Opinion for the court by filed Circuit

Judge WILLIAMS. Concurring opinion by filed Circuit SILBERMAN.

Concurring opinion by filed Circuit Judge GINSBURG.

Concurring opinion filed Circuit Judge HENDERSON.

Opinion filed Chief Judge EDWARDS, concurring in judgment to remand. insisting requirement, pleading” ened Judge: WILLIAMS, Circuit F. STEPHEN “non- advance a case in such en banc ease hear decided We sufficiently allegations conclusory continu resolve order initiative own our notice on defendants put to precise official’s a to how as disputes pre to them enable and claim the of nature defense a immunity, as qualified of assertion a appropriate, and, where tort, response pare constitutional for damage action ato im qualified on motion judgment summary judgment summary and pleading may affect Britton, unconstitutionally of v. munity grounds.” the where Crawford — El standards (quota Our (D.C.Cir.1991) motive. his on turns act 1317 official’s F.2d the 951 goals competing by the found we omitted). framed is inquiry By this standard tions Harlow in Supreme Court thought the described we wanting. Because claims his 816-18, 102 457 U.S. Fitzgerald, v. had doctrine pleading heightened our that 396 2737-38, 73 L.Ed.2d —vindi plaintiff to ways adverse in clearer become same the but at rights constitutional cating however, remanded we pleading, his since to exposure officials protecting time that in case court district the to the case unduly chill trial that discovery and per to discretion, decide should court, its in in the discretion exercise to readiness their Id. at repleading. mit former our here discard We interest. public al plaintiff the requirement solution —a grant indeed court district the remand On mo unconstitutional of evidence “direct” lege filed Crawford-El and permission, ed F.2d Gilley, v. Siegert See, e.g., tive. re- he There Complaint. Amended Fourth grounds, other on aff'd. (D.C.Cir.1990), claim, with but aceess-to-courts the pleaded 1789, 114 L.Ed.2d identified gap the fill to adding material out calling for Harlow read we But due pleaded also He opinion. first in our First, officials. protect to rules alternative dismissed court district The claim. process get official allows Harlow think we af court this of claims, panel and both quali the of resolution summary judgment Britton, 94- No. v. firmed. question the Crawford-El issue, including immunity fied 1-2, WL at op. mem. plaintiff mind, the state official’s the before addition, 1995). Craw In (D.C.Cir. issue. Sec Nov. discovery on in engaged alleged offers defendants’ the charged the unless ond, believe ford-El we the state-of- retalia on was belongings convincing evidence misdelivery of his and clear trial, and judgment feisty communications issue mind various for tion (as appropriate) verdict First the or directed judgment violation thus and press the defen individual the for granted ap initially should (This had claim Amendment. dant. round first briefing on in his peared F.2d Crawford-El, See court. the defen granted the District 1316.) court prisoner district The Crawford-El serving a system Amend the First correctional dismiss of Columbia’s motion dants’ pres- filed complaint He murder. well, saying sentence life claim ment indi- 1989, claiming that lawsuit of unconstitu ent evidence “direct” allege did Britton, a D.C. defendant, Patricia Gilley, Siegert vidual citing and motivation tional Co- official, District and correctional on (D.C.Cir.1990), 797, 800-802 aff'd belonging boxes misdelivered lumbia 231, 111 S.Ct. grounds, other and clothes papers, legal containing him (1991), our L.Ed.2d violating his items, thereby personal “di statement emphatic most court’s courts. of access right requirement. Crawford-El rect” and for dismissal moved Britton When (D.D.C.1994). 795, 802 F.Supp. Britton, 844 qualified grounds summary judgment two first affirming dismissal After mo- denied court district immunity, the en suggested, claims, panel reviewed We appealed. Britton tion First dismissal agreed, banc “height- under allegations Crawford-El’s claim liability subjective Amendment retaliation should be heard the inclusion of based on court en banc.1 greatly increasing malice as all these costs. subjective background law on liability opened motiva- Because up a wide field immunity. qualified tion and inquiry, often with “no clear end bearing relevant evidence” on the official’s Fitzgerald Harlow v. the Court values, “experiences, emotions,” reformulated its test officials’ typ immunity in constitutional tort actions. For ically susceptible disposition by sum qualified immunity may acts which apply,2 mary judgment, its resolution “peculiar prevail only by it held that the can ly disruptive of government.” effective Id. violation, showing just that there not was 816-17, at 102 at S.Ct. 2737-38. Most nota “clearly but that defendant’s acts violated bly purposes, for our the Court underscored statutory rights established constitutional the burdensome of character flow person of which a reasonable have 817, from liability. such at See id. 102 818, known.” 102 457 U.S. at S.Ct. at 2738. at (speaking “broad-ranging S.Ct. 2737 of the liability It thus excluded where was a there discovery” allowing that would result from (but right of clearly violation not so estab claims); 818, such id. at 102 S.Ct. at 2738 person lished that a reasonable would have (speaking of resulting “broad-reaching it) known of even when official acted Moreover, discovery”). said, the Court “with the malicious intention cause de liability would thwart what had been its privation rights as constitutional or other in 815, jury.” Id. at at (quoting sumption 102 S.Ct. 2737 qualified its earlier definition of Strickland, 308, 322, v. Wood 420 U.S. 95 immunity—that “[insubstantial lawsuits 992, 1001, 43 (1975)). 214 S.Ct. L.Ed.2d 814, quickly would be terminated.” Id. at 102 quite explicit The Court S.Ct. at (quoting as to the 2736 Butz v. Econo purpose change. of its It mou, noted that claims 478, 507-508, 2894, 438 U.S. 98 S.Ct. against necessarily officers included ones 2911, (1978)). Accordingly “against innocent as guilty,” well as the qualified the Court held that immunity could among and that the “social costs” of such penetrated only be showing objective on a expenses litigation, suits “the were require unreasonableness—the now familiar energy pressing diversion of official from “clearly ment of rights. established” Id. at issues, public and the deterrence able citi- 818, Henceforth, 102 S.Ct. at 2738. “bare acceptance public zens from office.” Id. at allegations of malice should not suffice to 814,102 least, S.Ct. at 2736. Last but not it subject government officials either to the opinion Gregoire invoked Hand’s v. costs of trial or to the burdens of broad- Biddle, (2d Cir.1949), 177 F.2d 579 which had reaching discovery.” Id. at 102 S.Ct. argued being the fear of sued would at 2738. The Court later described Harlow “dampen all the ardor of but the most reso- having “purged qualified as immunity doc lute, irresponsible [public or the most offi- subjective trine of its cials], components.” unflinching discharge in the Mitchell of their Harlow, Forsyth, 2806, at v. (quoted duties.” 177 F.2d 581 2736). 814, 457 at 102 U.S. S.Ct. at It (1985); saw 86 411 L.Ed.2d see also Davis rehearing Our order for en banc relates part complaint pen- Another extant of the ais immunity qualified by plaintiff’s raised action dant District law claim for conversion of Craw- is, against Britton. But the District of Columbia properly. (in ford-El's The survival of this claim text, as noted in the still the case. The district courts) whether, the federal turns on after the defendant, court dismissed it but since here, any remand ordered there is federal claim complaints in his successive amended Crawford- may appended. to which it repeatedly E1 named the District as defendant object, and the District did not held that the District had waived a law-of-the- the district court qualified immunity 2. The defense is unavailable acts, Harlow, for ministerial see 457 U.S. at argument case and therefore reinstated de- 2737; Scherer, 102 S.Ct. at see also Davis v. Britton, fendant. 795, F.Supp. v. Crawford-El 196 n. (D.D.C.1994). 3020 n. 795 n.l Because Crawford- unnecessary L.Ed.2d 139 El's claims for acts the District do not concern questions granted enjoys rehearing immunity, we for which the officer absolute en banc, they Harlow, panel. to be resolved U.S. at S.Ct. at 2732. Id. grounds.” immunity qualified tion Scherer, v. issue explicitly speak This did 3017, L.Ed.2d par- surmount must whether every circuit decisions fact, under discovery. to secure order burden ticular matter, Harlow addressing the Metropolitan Police v. D.C. Martin But in cir This purpose. the stated accomplished sub- view took specifically we Harlow understood others cuit involving cases characteristics stantive motivation subjective into inquiry allow mo- immunity unconstitutional be act an otherwise where garden-variety from required deviation tive performed only when unconstitutional comes Pro- Civil Rules Federal application as, (such motive forbidden sort some with discovery rules. pleading liberal cedure’s rout decisions Britton’s here, claim appro- evident length and quoted We by a driven were parcels ing Crawford-El’s decision: Circuit a Fifth bation speech of free exercise penalize desire One do? judge trial is a federal What Gilley, F.2d Siegert See, e.g., rights). just anoth- it as face may not do: thing he Davey, 890 800-801; Whitacre pleading’s notice the which in lawsuit er v. D.C. Martin (D.C.Cir.1989); 1168, 1171 on counts P. 8 F.R. Civ. of policy liberal F.2d Dept., 812 Police Metropolitan the factual ascertain discovery to pre-trial Howard v. (D.C.Cir.1987); Gooden 1431 Allowing pretrial ... elaim[.] the for basis (4th Cir. 960, 969-70 Md., F.2d 954 County, ad- taken those especially depositions, Neighborhood banc); (en Pueblo 1992) to ferret official versely of the F.2d Losavio, 847 Ctrs., v. Inc. Health therefor reasons and the actions of his all Thomas, 937 Cir.1988); v. Elliott (10th 649 the function and frustrate ... would defeat Cir.1991); v. (7th Branch 338, 344 — 45 F.2d ... immunity!.] ... purpose and Cir.1994); (9th cf. 449, 452 Tunnell, F.3d 14 the to establish discovery liberal of [U]se 180, 186-87 F.2d Kissinger, 807 v. Halperin the with at odds directly a claim of basis others’ and court’s (noting this (D.C.Cir.1986) govern- Harlow direction Court’s motive unconstitutional to allow decisions to] immunity [are to entitled officials ment security). national than in areas claims stress, burdens, the the the from freed be many of entailed it has though Even pretrial of diversions and anxieties subjective moti into inquiry of costs” “social preparations. Harlow, have conclud courts stated vation J.) (R.B. Ginsburg, Martin, at 1437 F.2d 812 of vindication ed that 1472, 1479 Perez, F.2d v. liability Elliott (quoting damages for calls rights —often omitted). Cir.1985)) (footnotes (5th vindication. such for available only device at 186. imposed F.2d Halperin, both in Martin holding Our related and requirement evidence” (D.C.Cir. “direct Wilson, v. In Hobson trial, get to To discovery. problem to the noting that problem, 1984), recognized we “something produce must said, plaintiff we motive of unconstitutional claim plaintiffs sup- or circumstantial than more trial, with discovery and inferential easily to lead could mo- of unconstitutional allegation port be “result would success, hope no im- [of direct is, some That tive. pre sought to Harlow burden precisely ” produced.... be must motivation] proper claims that for decided 29. We at Id. vent.” added). we But (emphasis at 1435 F.2d es an intent unconstitutional which discovery. on rule explicit no formulated ev allegations “nonconclusory part, sential about exhortation Elliott’s quoted we a While present be intent must of such idence burdens, “the officials protecting discov to proceed to litigants complaint the diversions stress, anxieties on allegations claim. ery on said also we preparations,” pretrial they will extensive, but not be issue need de- plaintiffs ban on complete defen put sufficiently precise immu- resolution before fendant the claim nature notice on dants turn might summary judgment on and, nity issues response prepare them enable raise plaintiffs allowing prior decisions mo- summary judgment appropriate, where — remanded, U.S.-, claims of unconstitutional motive into an “empty at gesture,” (1995), id. and that we L.Ed.2d for consideration in the — space “leaving discovery,” were some Jones, U.S.-, id. light of v. Johnson employ par- We told district courts to “with sensibility large

ticular their care au- clarified the permitting circumstances in- thority discovery” to exercise control over terlocutory appeal from denial of a all the properly. order to balance concerns judgment by a invoking motion defendant Id. at 1436-37.3 qualified immunity; we then dismissed the appeal. 91-5315, Kimberlin No. 1995 WL Davey we read Whitacre Martin to (D.C.Cir. (order 1995) Nov. re- allegations require of direct evidence of un- court). manding case to district constitutional motive survive a motion to get discovery, 890 dismiss and F.2d at 1171 ap Because the district court here point necessary & n. was not but plied rule, the “direct F.Supp. evidence” allegations case because circumstantial n.4, at 798 and found Crawford-El’s com inadequate evidence were even under the plaint wanting, id. present VII, demanding less standard of Title see id. case calls tous decide whether the circuit Finally, Siegert at 1172. Gilley, rule, apply should continue foreclos specifically we held that “in ing discovery pleadings unless the assert “di discovery, order to obtain even limited rect evidence” of illicit motive. We find that pleaded [unconstitutional] intent must be if, question easy, believe, at least as we there specific, discernible facts or offers of adequate reconciling alternative means of proof opposed that constitute direct as to twin purposes Harlow’s in the context merely circumstantial evidence of the intent.” constitutional torts dependent on the official’s pleading requirement The entailed the dis- having improper motive. We first ad covery consequence: defendant was enti- dress the drawbacks of the “direct evidence” to in tled dismissal the case the absence of rule, and then consider extrapola alternative specific evidence, of direct assertions there logic tions from the of Harlow. discovery. would be no for occasion Al- though Supreme granted Court certiorari require- “direct evidence” Deficiencies of question on the ‘heightened whether “a ment. pleading’ precludes standard which limited discovery prior disposition First, to summary on a the distinction between direct law,” judgment applicable motion violates and circumstantial has no evidence direct Cert, i, quoted Siegert Pet. for in Gilley, v. strength plaintiffs correlation with the of the 226, 237, 500 111 114 perjured case. While a of having claim (1991) (Marshall, J., 277 dissenting), L.Ed.2d heard confession of unconstitutional motive different, in the Court fact affirmed on test, would meet the a massive circumstan issue, “preliminary” namely its conclusion tial Siegert case would not. Gilley, See v. allege had failed to a constitu- 500 U.S. at 111 (Kennedy, S.Ct. at 1795 232-35, at J., tional violation all. Id. at 111 concurring) (rejecting D.C. di Circuit’s Quinlan, S.Ct. at 1793-94. Kimberlin v. ground); test El rect/cireumstantial (D.C.Cir.1993), 6 F.3d 793-94 applied Thomas, we (same). liott v. 937 at F.2d our requirement, Second, “direct evidence” de- the distinction appear does not cali rehearing flurry nied banc with a en of con- any brated in way other to the trade-offs curring dissenting opinions, 17 F.3d 1525 found determinative the Court in Harlow (D.C.Cir.1994). Supreme granted Court qualified immunity generally. doctrine — U.S.-, certiorari, 130 Although presumably the rule did reduce the L.Ed.2d 876 but then vacated and incidence of damage motive-related suits Then-Judge Ginsburg 3. Bowen, later observed that in lar case.” Bartlett v. Martin the court "cut back allowable discov- (D.C.Cir. 1987) J., (R.B. Ginsburg, concur limited, ery severely, permitting only sharply ring rehearing in denial of en banc in Martin then, precisely inquiry, line defined and even cases). several other only special exigencies because particu- unconstitu- conduct rendering the ment to think reason no officers, we have against Thomas, at F.2d v. Elliott See than, say, a tional. a screen any better it did Harlow” program “the (carrying out every ten out of nine rejection random defendants to imputing require prece would of circuit The abandonment claims. have); see possibly they could intent lightly best to be of course era banc dent to (reading Harlow Op., post Project also Silberman Energy Mass Critical undertaken. torts). As Elliott (en liability for such extinguish (D.C.Cir.1992) 871, 875 NRC, F.2d v. eliminate however, that would noted, Rumsey, v. banc) Arizona (quoting wrong- “egregious remedy even for damage L.Ed.2d 104 S.Ct. Halperin, 344; also see contemplat at F.2d doing.” noted (1984)). have We then, What, Harlow does at 807 F.2d. treatment overrulings ing such balance devices con appropriate to be suggest are ais factor circuits issue providing remedies Here, courts the interest Id. at sidered. officials have rule in protecting evidence the interest direct our consider as Har- burdens, including, v. Thom litigation Elliott undue emphatically, rejected it discovery itself? Tunnell, 1386- emphasized, low as; Branch Supreme the four Cir.1991), (9th as have at the lies the answer the crux thinkWe speak on chosen justices who It litigation. phase of summary judgment Gilley, 500 Siegert matter. First, meth- what questions: two into divides J., (Kennedy, con at 1795 235-36, 111 S.Ct. evidence to secure use may plaintiff ods at 1800-01 curring); id. summary motion the defendant’s resist & Ste J., Blaekmun whom (Marshall, Second, plaintiffs must judgment? dissenting). Under concurred, JJ., vens, standard higher some substantively meet readily justifiable circumstances, think we test? preponderance the conventional than establishing precedents our overrule se- available 1. Methods distinction, without direet/eircumstantial purposes curing evidence for whether question addressing the even immunity. resolution judgment require pleading as a rule mulation in occur litigation of burdens primary The concepts pleading liberal the violates ment de- can plaintiff the If discovery trial. of Civil Rules Federal the established discov- he uses judgment while summary fer Co. v. Tarrant Leatherman See Procedure. to defendant’s ery to extract Unit, Intelligence & Coordination Narcotics ex- about concern mind, Harlow’s of state 1160, 122 L.Ed.2d S.Ct. discovery will debilitating officials posing pleading heightened (invalidating (1993) tort in constitutional be defeated generally govern municipal invoked requirement After motive. improper tort, dependent cases to constitutional as defense unit ment said, test, the Court objective describing its 9(b), but reserv 8 and Rules as violation is immunity question threshold this “Until to claims holding’s application ing issue allowed.” be resolved, discovery should officials). individual canWe 818, 102 S.Ct. U.S. at Har- insisted apparently sequence the protections protect Alternative inferred there discovery until by Harlow —no upon low. qualified at the cut one at least has been assumed Court Supreme Harlow the In rule straightforward by the immunity issue — of officer principles established it had summary judg- defeat cannot plaintiff burdens litigation eliminated liability that discovery, he unless, prior to motion ment mind, or, state an official’s associated non-eonclusory assertions specific, offers Forsyth, in point Mitchell put the it materials or evidence, in affidavits immunity doctrine qualified “purged it had from which judgment, summary suitable components.” subjective its mo- forbidden infer finder could a fact to be proposition For that at 2810. Siegert, in concurring opinion reject tive. necessary to true, be literally approach. Kennedy adumbrated Justice torts liability for any officer pleading” “heightened Observing ele- essential is intent officer’s which inconsistent with Federal Rules of Civil Pro- analysis their of Harlow —its articulation of 9(b), cedure 8 and he said: right substantive qualified immunity. But of disruptive avoidance To allow discovery plaintiff engage in discovery, very purposes one order to carry the official his burden of establishing doctrine, immunity basis it is no for inferring improper answer to motive, would say plaintiff that the violate yet Harlow’s had the protect determination to opportunity engage the official from discovery. until qualified immunity substantive immunity issue has been controls. resolved. defense of Under Act, Rules Upon Enabling qualified assertion Federal immu- Rules of Civil Procedure nity plaintiff defense abridge, “shall not put must en- forward large or modify any specific, nonconclusory right,” substantive allegations factual § 2072(b), U.S.C. so malice, reading establish face dismissal. Rules to trump officials’ substantive entitle- 500 U.S. at 111 S.Ct. at (emphasis ments is impermissible. added). We note that the rule preventing discovery Thomas, In Elliott v. 344-46, 937 F.2d at concerning illicit motivation does not bar spelled Easterbrook point out the discovery concerning a defendant official’s more detail. “Unless has the state of mind for other purposes. A claim kernel of a case in [specific, hand nonconclu- for damages for an allegedly sory unreasonable allegations which establish the neces- search or seizure will often turn on whether sary state], mental the defendant wins on possession defendant inwas of facts that immunity grounds in advance of discovery.” would have led a reasonable officer sup Id. at 344-45. Because the substantive pose he probable cause or exigent cir law—the law of immunity per Har- See, cumstances. e.g., Anderson Creigh low—tells what is needed for sum- ton, 640-41, 107 mary judgment, there is no conflict with Rule (relevant L.Ed.2d 523 provision 56’s judgment: question in that case (al objective was “the If a rule of law crafted to carry out the beit fact-specific) question whether a reason promise of requires Harlow the plaintiff to able officer could have believed Anderson’s produce evidence, some and the warrantless search to lawful, light so, fails to 56(c) do then Rule allows the clearly established law and the information grant court to the motion for summary the searching possessed”) (emphasis officers judgment without ado. added). Although the Anderson ap added). F.2d at (emphasis is, This of peared to discourage discovery even in that course, substantially similar in result to the context, id. see at n. 646-47 imposition of a “heightened pleading” stan- 3042-43 n. we do not understand its mes dard, prevent in that both serious invasion of sage as remotely approaching an absolute the defendant’s time plaintiff unless can, bar. Similarly, in Billman v. Indiana Dep’t discovery, without specifics offer of his case Corrections, (7th 56 F.3d 788-89 of Cir. as to defendant’s See, motivation. e.g., El- 1995), the Seventh said Circuit per it would Perez; liott v. Sawyer v. County Creek, mit discovery to allow a prisoner to identify (10th Cir.1990) (noting proper defendants in Eighth Amend because conceded inability to ment case where a defendant would be hable complaint amend without discovery, dismissal if it were shown that he plaintiffs knew prejudice). would be with cellmate was HIV-positive and had a tenden Although neither Elliott nor Justice Ken- cy rape to cellmates, and was responsible for nedy’s concurrence Siegert in expressly ad- assignment. The state-of-mind showings 56(f), dressed Rule which authorizes the dis- plaintiffs had to make in Anderson and trict judge to defer ruling on summary Billman thus simply went to the defendants’ judgment provide and to for depositions and acquisition particular facts, not the broad other discovery, the solution flows from er inquiry into motivation at stake here.4 Thus, Judge Edwards, unlike Op. Edwards we do any not see schism in the mind, subjective it on a state of can as does equivalent be Crawford-El case would Our easy very very allege to that Britton knew be difficult simply to show (or something disprove.”)); see also v. Bol- legal papers prove or Ross contained boxes (2d (rationale ton, Cir.1990) responsible plaintiff) and was of value to else requirement heightened pleading for their transfer. behind 9(b) preventing improvident fraud Rule is Requirement clear con suits); charges wrongdoing and strike vincing There still remains evidence. Miller, Wright A. & Arthur R. Charles question the defendant’s entitlement whether § Federal Practice and Procedure immunity summary judgment on (1990) (same). Even cut off the fruit of discovery an ade plaintiffs achieves before discovery against depositions and other purposes. quate light of Harlow’s balance colleagues, plaintiff and her will defendant summary judgment principles Conventional pattern a depict often be able to selective Plain supply protection some defendants. that, a decisions without evidence of more is do than “show that there tiff must better ones, complete comparable set of and exten- metaphysical as to the material some doubt explanation by one or more decision- sive v. Ze Elec. Indus. Co. facts.” Matsushita makers, fishy enough jury will that a look 574, 586, 106 Corp., nith Radio reasonably by pre- could find illicit motive (1986). “The 89 L.Ed.2d 538 ponderance. of evidence mere a scintilla existence in plaintiffs position will be support of the Second, plainly views the costs of Harlow judgment for [to sufficient block grant in the or denial of error relief Lobby, Liberty Anderson v. defendant].” asymmetrical. eases as The decision ex- Inc., 477 pressed strong about the concern social ar Here defendants damages litigation costs of officials— enough. They propose a gue that that is not (to namely repeat), the costs of conventional standard, re they frame special time, litigation, of the officials’ the diversion The United quirement “strong evidence.” persons accept- from even deterrence able height proposes amicus a similar States as office, chilling ing public and the of officials’ standard; framing proposal ened public discretion in the readiness exercise pleading, suggests terms of costs the good. Because of those Court “plead giving required specific facts be recovery adopted denying categorically a rule strong alleged inference rise to known, where, fully if the truth could discovery will be improper before motive perpetration of a con- there was malicious permitted.”5 (but of a violation stitutional violation right clearly that a reasonable so established make us believe that stan Two factors (cou crossing known he was summary judgment person would have protection of dard above) line). that the This can mean pled limit stated with the on liabili- liability litiga regarded at least some kinds officer exposure leave an to both intent) (those turning subjective ty square with Har impossible tion where, is, everything being equal, the First, else ones unconstitutional motivation low. recovery denying fraud, allege erroneously easy social costs of of civil is often said Jones, by com- in some cases were exceeded disprove. Bower v. 978 hard to (1) (2) Cir.1992) (7th litigating and 1004, (citing Hollymatic costs of bined social 1012 Inc., erroneously affording recovery in other Systems, F.Supp. Corp. Holly 620 (N.D.Ill.1985) (“[F]raud, 1366, focusing cases. 1369 Circuit, requirement the So- Edwards is correct neither Seventh between Elliott's General nor the defendants supply of defen- licitor himself standard, convincing’’ the "clear in order to withstand advocated dant’s illicit motivation 852, motion, Op. be- the difference summary judgment see Edwards at but defendant’s 345, did allowing plaintiff that and the Solicitor General tween what at and Billman's proposed mainly appears that his develop to be was aware advocate evidence that defendant would, defendant, language that has is formulated in render standard facts that if known experience it. and tradition behind much less his violative of the 8th Amendment. conduct

822 A standard solution to such a difference in pause We to note a relationship between between two types costs (1) adjust error is to of litigation costs regardless of out- proof. standard Criminal law (2) is the come and a different societal valuation of best example, known where it is seen as the two types of error. Where the social quite better to allow actually few guilty costs of litigation itself are exceptionally perhaps many, in go fact —to high, assuming defendants — no difference at inall societal free than one innocent one to be convict- valuation of the two types error, different ed; ergo, the reasonable doubt standard. that alone ground could abe for a tilt against See, e.g., In re Winship, 358, 397 372, the party seeking to alter the quo. status 1068, 1077, 90 S.Ct. (1970) 25 L.Ed.2d 368 Because a reduction in the probability of (Harlan, J., (“[I]t concurring) is far worse to success reduces the incentives bring suit convict innocent man than a guilty to let (everything being else equal), such a tilt will free.”); go man cf. 4 Blackstone, William automatically reduce the aggregate costs of Commentaries (explaining *358 two-witness the affected class of lawsuits —at some cost cases). perjury rule in But civil law contains in increasing the number good claims frequent applications of a tilt, more modest go uncompensated.7 Accordingly, imposition requirement party that the seeking to mobi- of a clear and convincing may standard imply lize the state to alter the quo prove status (1) simply a perception type that the litiga- case clear and convincing evidence. tion unusually (so involves high costs Courts have set that in deportation hurdle tilt against its initiators will decrease inci- its proceedings, Woodby v. Immigration and dence, the court regarding the increase Service, Naturalization 276, 285, 385 U.S. 87 recovery denials of as an acceptable cost), or 483, 487-88, 5.Ct. 17 (1966); L.Ed.2d 362 (2) a conclusion that errors in defendants’ proceedings, denaturalization Schneiderman favor are independently to be preferred to States, 118, United 123, 320 U.S. plaintiffs’ errors favor, or some combi- 1333, 1335-36, 87 (1943); L.Ed. 1796 civil nation of the two. If the holding of Harlow proceedings, commitment Addington v. Tex- represented nothing else, it surely manifest- as, 418, 423, 441 U.S. 1804, S.Ct. 60 ed either the first or possibili- third those (1979); L.Ed.2d 323 cases involving termi- ties; all, after in one stroke it destroyed an parental rights, nation Santosky v. Kram- entire group of claims was, for what by hy- er, 1388,1396, S.Ct. 71 pothesis, unconstitutional behavior. (1982); L.Ed.2d 599 defamation suits against public figures, New York Times The cases applying Co. v. Sulli- clear convincing van, evidence standard S.Ct. frequently 728- allude to the (1964); second of (which and a variety these rationales of course is other civil cases fraud, such as civil encompassed wills, third). lost As the Court and oral contracts bequests, make observed in see Addington, a standard of proof Woodby, 385 U.S. at 285 n. both S.Ct. at 488 “indicated] the relative importance at n. 18 (citing Wigmore § Evidence tached to the ultimate decision” and also (3d ed.1940)). Although we understand the “serves allocate the risk of error between specific urged standards litigants.” defendants and U.S. at the United States (“strong 1808; evidence” and Santosky, also 755,102 455 U.S. at inference”) “strong to be aimed similar S.Ct. at (citing 1395-96 Addington); Cruzan concerns, do pursue we them Director, because of v. Dep’t Health, Missouri their uncertainty compared to familiar U.S. clear and convincing standard.6 (1990) (same). L.Ed.2d 224 The Court illus- "strong inference” standard course, is used the 7. Of many plaintiffs rights in civil actions Second Circuit in securities fraud against public cases under officials know that their chances 9(b). See, Fed.R.Civ.P. e.g., of v. success Acito on the IMCERA merits are may minimal and be 47, Group, (2d Cir.1995); 47 F.3d 52 motivated by purposes Shields v. other than achieving that Citytrust Bancorp, success. The tilt (2d makes it 1127-28 easier for district Cir.1994). judges to end such quickly, cases thereby reduc- ing the burdens on the defendant and court concerned Court in Harlow.

823 pleadings? What of in New York Times Co. The label this rationale trated Sullivan, “heightened special Supreme pleading” require a Court for quoting Kansas v. involving malice for torts im support its actual standard: ments constitutional case to “ injury reputations always of proper to the motive was misnomer. A ‘[Occasional welfare, anticipate yield public plaintiff required is not the de must individuals injury may qualified immunity in complaint, fense of although at times ” Toledo, at 726 v. 446 great.’ 376 U.S. at 84 S.Ct. Gomez U.S. 100 S.Ct. MacLennan, 1920, 1923-24, (1980), (quoting v. 78 Kan. and Coleman (1908)). 711, 724, Supreme of P. 281 under the Federal Rules Civil Procedure 98 discussing file required reply such terms is Court has used defendant’s Woodby, special proof. of if gradations answer the district exercises its 487-88; 7(a) 284-85, Adding authority at At at 87 S.Ct. under Rule order one. U.S. 423-25, 1808-09; ton, always ability at been the of at S.Ct. stake Santosky, plaintiff at at 1395- to inflict on the defendant 455 U.S. S.Ct. officer liability litigation and the of serious burdens itself—discovery Although and trial. we un of developing In the New York Times rule arguments derstand the of the court evidence, convincing the Court ex- clear and Wood, (5th 1427, 1432-34 v. Schultea reasoning Barr v. plicitly of drew on Cir.1995), supporting quali a rule that where Matteo, 564, 571, 575, 79 S.Ct. immunity involving is raised in a case fied (1959), in which L.Ed.2d illicit the district discretion not motive court’s explicated and absolute officer had extended indeed,” reply we to order “is narrow do immunity types for of official acts. certain discovery why the limit and the see on 282, 84 at 727. It recited 376 U.S. at S.Ct. proof of would not standard discussed above litany officer Barr's entire of social costs of adequately implications fulfill the of Harlow. liability—essentially those later invoked replies and motions Of course court-ordered justifying adoption parallel its Harlow—as for a more definite statement under Rule rule. Id. If a of the New York Times 12(e) may simplify process, speed but proof—clear and con- heightened standard of protection we do not of substantive remedy vincing in the evidence—was a sound requires special rights rules. defamation, think it public figure we area equally cognate in the area of officer so briefly argument We note of the Amer- damage liability for torts based amicus, drawing ican Civil Liberties Union improper on motive. Jones, on decision in Johnson v. the recent — U.S.-, 2151, 132 Heightened proof 115 S.Ct. L.Ed.2d standards course Forsyth In summary judgment at Mitchell Su- apply equivalently trial, preme applied In Court the “collateral order” at as a web. Anderson seamless Indus. Loan Liberty Lobby, Inc. made clear doctrine Cohen v. Court Beneficial Corp., just 93 L.Ed. as the reasonable doubt standard judicial appeal implies to hold that immediate for criminal trials its use for “denial of a defendant’s acquittal, for the clear was available evaluation motions summary judgment of malice for dismissal or convincing standard for trial motion ground qualified immunity.” 472 public figure on the purposes defamation In “a for mo- at 2816. Johnson imply corresponding effect” U.S. at must pure expressly limited Mitchell to tions a directed verdict law, at-, at id. 115 S.Ct. judgment. 477 U.S. at issues given that a set of such as the determination 2512-13.8 words, although forward with evi- tion. Once the has come discovery get jury regard he had in hand clear and would no unless dence that could jury finding convincing proof support a in his evidence that would the defendant’s unconstitu- issue, motive, discovery did have that is- on the motive he tional his access all favor be, motive) addi- (including could use to obtain in the view evidence he sues help might win plurality, him judges in matter for the dis- tional evidence that persuasion ordinary litiga- civil battle of trial. trict court to determine as in facts constituted a of clearly violation estab- this court recognized the distinction drawn in law, -, lished id. at 115 S.Ct. at 2159. Johnson that case decided, was see before This made appeals clear that from denials of Britton, v. (no at Crawford-El summary judgment were not available for immediate review available for district questions evidentiary sufficiency. Id. at court’s treatment of an “I didn’t do it” de- -, 2156; at S.Ct. see also Behrens v. fense on summary judgment); also see John- — — Pelletier, U.S.-,-, son, -, U.S. at 115 S.Ct. at 2154 (explicating (listing among the decisions on Crawford-El Johnson). The Court especially con- the side that correct), Johnson found yet cerned that allowing interlocutory appeals of applied special nonetheless standards. More questions factual about “may intent require generally, know, so far as we most if all reading pretrial record, a vast with numerous trial proceedings over claims requiring affidavits, conflicting depositions and other clear and convincing proof plod along without discovery materials” and would result un- any application of the collateral order doc- justifiable delay plaintiff. for the Johnson, trine. Limits on the reach of that doctrine of — at-, S.Ct. at 2158. course delay mean in the correction of trial court error and resulting increased expo- The argues ACLU that Johnson concluded sure of officials to some adverse conse- dispute where a about material facts quences, but we do not every see why fine- in a exists case, constitutional tort goal “the tuning that immediacy limits the of appeal of shielding defendants from discovery or should connote some anti-defendant shift in yields trial goals the usual of resolving the principles to be applied by the district cases on their through merits proce normal court.9 dures.” But Johnson is remotely so Application to sweeping. As the Court Crawford-El observed Beh- rens, “Every denial of summary judgment seen, As we have the district court dis- ultimately upon rests a determination that missed Crawford-El’s Fourth Amended there are controverted issues of material Complaint under the “heightened pleading” — fact.” -, U.S. at at requirement. If dismissal of the complaint question purposes of immediate ap- were the sole means protect available to de- pealability is point whether the at issue is fendants from discovery by Harlow, barred mere sufficiency of the evidence or “more then we would confront the issue of whether — abstract Johnson, issues law.” U.S. at Rule 8’s (“a minimalist standard short and — -, 2158; Behrens, at plain statement of grounds”) could -, 116 S.Ct. at 842. The Court never applied to the complaints sort of here at (or addressed at) even hinted any adjustment issue without violating 2072(b)’s § U.S.C. judgment standards for con ban on the exercise of rulemaking power to stitutional involving torts improper motive “abridge, enlarge modify any substantive Indeed, under Harlow. no court appeals right.” See Leatherman v. Tarrant Co. thus far has special abandoned its standards Narcotics Intelligence & Unit, Coordination in constitutional motive cases in light of 507 U.S. at 113 S.Ct. at 1162-63 See, e.g., Johnson. Valder, Moore v. 65 F.3d (leaving open question of whether courts are 189, 195, 196 & n. (D.C.Cir.1995); Morin apply “heightened pleading” requirement Caire, (5th 77 F.3d Cir.1996); claims government officials). But Veney v. Hogan, (6th 70 F.3d Cir. we see no reason why offi- 1995); Estes, Hervey v. 65 F.3d 788-89 cials’ insulation would not be (9th Cir.1995); Gehl Group Koby, amply protected by the principle we have (10th Cir.1995). And, course, already described, entitling officials to sum- Edwards plurality accuses the of insuffi- plurality, id., suggesting that courts “judicial restraint,” cient Op. Edwards take a modest role in monitoring judgments but it is by not clear question what standard one resolu- political branches, as contradicting an tion of a unanswered Harlow is more opinion tendency whose (among the various or less "restrained” than another. Nor is it clear plausible alternatives) is to exactly do that. why one should view a book review a member

825 speech qualified rights of his First Amendment ercise mary judgment resolution of their clearly a discovery. That be- would indeed be violation of estab- immunity claims before so, of con- lished law. application is how ing unclear amount to pleading could

ventional standards questions We must answer two here: abridgement forbid- of substantive sort (1) speech pro whether Crawford-El’s 2072(b). Accordingly, think it by § we den under the such that tected First Amendment ap- for the district court to was not correct clearly of a retaliation would be violation standard, literally, heightened pleading ply, a right great the established how retal invalidity of our now- quite apart from the iatory injury must be. We start with the rule. abandoned direct Supreme first. The Court’s decision Tur however, obviously, Quite the court 78, 2254, 88,107 Safley, v. ner 482 S.Ct. U.S. litigants caught have in a vortex been (1987), 96 L.Ed.2d 64 summarized ex although the de- changing standards. And isting precedent—including Procunier v. summary judg- not moved for fendants have Martinez, 396, 413-14, 94 416 S.Ct. Amended filing ment since the of the Fourth 1811-12, 40 224 L.Ed.2d they will so. Complaint, it seems sure that do Procunier, 817, 822, 94 Pell v. S.Ct. Moreover, has on notice at been (1974)—and set need for least since our 1991 decision controlling pris “[W]hen out the test here: “nonconclusory allegations are suffi- on regulation impinges on inmates’ constitu put ciently precise to defendants on notice rights, regulation tional is valid it is the nature the claim and enable them reasonably legitimate penological related to and, prepare response appropriate, where ap face Although interests.” on its Turner summary judgment im- motion plies only regulations, several other courts Crawford-El, at munity grounds.” 951 F.2d actions, prison applied to other the test omitted). (quotations Ac- and citations including those retaliation cases. Frazier likely cordingly, overwhelmingly it seems Dubois, (10th Cir.1990) v. 922 F.2d repre- Complaint that the Fourth Amended (applying Turner in a Amendment re First approximation of very at least a sents close case); Cain, 864 F.2d taliation Jackson v. can advance in resistance what Crawford-El (5th Cir.1989) (same); cf. Cornell summary judgment. In the to the motion for (8th Cir.1995) Woods, v. 69 F.3d then, case, are unusual context of this we (in case, apply retaliation First Amendment opinion hardly giving advisory when we Procunier, v. 417 U.S. at Pell embodying the consider whether affidavits (“[A] prison inmate retains S.Ct. at 2804 Complaint assertions of the Fourth Amended rights that those First Amendment successfully could withstand Britton’s motion prisoner with his status as inconsistent summary judgment, by the affida- backed legitimate objectives penological with the already vit filed. she system.”)). the corrections Several cases right prisoner’s to have Al have held that Whether Has Crawford-El may press be limited. Pell leged a First Amendment Violation. We access Procunier, at 2810 allega first examine whether Crawford-El’s prison (upholding regulation prohibiting face- possibly could constitute a violation of tions particular in clearly right. See to-face media interviews established constitutional Kimberlin, designated by press); Siegert, at 1791 mates 500 U.S. at (upholding n. 6 under Turner (question complained of 6 F.3d at 791 whether the conduct prisoner press clearly policy prohibiting established warden’s constitutes violation limiting prisoners’ press ac stage” “analytically law at an than conferences and earlier standard); heightened settings expressly authorized under question pleading cess to State, regulations). But court has held Dep’t prison 37 F.3d no Kartseva v. also (D.C.Cir.1994) (same); total on communications to that a ban Moore (same). Valder, v. Fitz passes Cf. Nolan Although press muster. Cir.1971) (1st close, withholding patrick, question is we hold prisoner letters (striking down ban on property in retaliation for ex- Crawford-El’s 826 news media insofar the letters concerned Wilson, Hobson v. (mental at 61-62 F.2d matters; prison emphasizing prison con- distress damages recoverable violation of ditions important are “an public matter of First right political Amendment of associa- policy” prisoners about which are “peculiarly tion); Dubois, Frazier v. 922 F.2d at 561 knowledgeable”). And in light of Turner and (transfer prisoner of in retaliation for exer- cases, related retaliation Crawford- cise of First Amendment rights is unconstitu- El for prison criticism of the administration cases). injury; tional citing truthful, that was otherwise offensive The district court commendably latched (so penological some ap- interest far as onto approval our of Bart and applied a pears), would have a clearly violated estab- sensible standard —whether an official’s acts right lished of which a prison reasonable “would chill or ‘person silence a ordinary of official would have known. Pickering Cf. firmness’ from future First Amendment ac- Educ., Bd. 563, 568, tivities.” F.Supp. Bart). at 801 (quoting 1731, 1736-37, S.Ct. (1968) The court then found pecuniary (holding that precludes First Amendment losses Crawford-El sustained the form of dismissal a school teacher who criticized of shipping costs his boxes and replacing Board of Education’s handling of a bond clothing, small, though might well deter a issue; public employees should be able to person of ordinary firmness in Crawford-El’s speak freely public on issues of concern with- position from speaking again. agree We retaliation). out fear of the acts asserted pass that test. As to the sort injury cognizable under Amendment, First Jury Whether a Crawford-El here al- Could Reasonably leges replacing underwear, the costs of Find Clear and Convincing ten- Evidence Re- shoes, shoes, nis soft items; taliatory and other Action. ship- The Fourth Amended

ping charges to get papers back; Complaint his alleges a variety of encounters mental and emotional distress. between our earli- Crawford-El and Britton from opinion er case, in this we noted that some believes it can be inferred that non-de minimis showing of injury the misdelivery is neces- goods must have been sary in action, a constitutional tort retaliation for various activities that are 1321, 1322, Ingraham and cited Wright, protected by the First Amendment. Crawford-El sets stage with allega- (1977) (“There is, L.Ed.2d 711 course, a de tions that Britton was hostile to him because minimis level imposition with which the of his actions on behalf of prisoners fellow Constitution concerned.”), is not and Bart v. even before his contacts with press. Telford, (7th Cir.1982). While he was Clerk for Occoquan Facility Bart stated that “even in the field of consti- Housing Adjustment Board at Lorton tutional torts de minimis non curat lex.” (from about October April 1986), 1985 to he Id. “It would trivialize the First Amend- frequent contact with Britton since she ment to hold that harassment for exercising often served on that Board and Crawford-El right speech free always was action- often went to the nearby block containing able no matter how unlikely to per- deter a Britton’s office to photocopy. He claims that son of ordinary firmness from that exer- Britton, while despising prisoners, all was example, supervisor cise”—for frowning at particularly hostile him because he had an employee in retaliation would not consti- been in charge of the law library when tute injury. Still, sufficient Id. the effect on housed at the central facility at Lorton and freedom speech of retaliations “need not had helped many prisoners prepare adminis- great in order to Id.; be actionable.” cf. grievances. trative According to Crawford- Memphis Community Sch. Stachura, Dist. v. El, Britton him deemed big “too for his 299, 306-311, 2542- britches.” 45, 91 L.Ed.2d 249 (out-of-pocket and mental damages distress recoverable for vio- In April 1986 apparently Crawford-El in- lation of Due Process Clause and reporters First vited from the Washington Post to right Amendment freedom); academic visit prison, correctly noting on the visi- so their hair get us out of put here been Britton submitted form application tor procedural will be dismissed lawsuits was our address visitors’ proposed publication Shortly after but grounds.” DC NW, Washington, Street, 15th Crawford-El, Brit- article, according Post’s this omitting discreetly County Jail official application. Spokane told approved ton Britton address. troublemaker,” the legal April came, was “a on and Crawford-El reporter A pris- the “a complaint, under front-page according article to meaning, a published Post Occoquan rights, or Spills Into legal or his Crisis her “Jail who oner asserts headline as Anger “Crowding, Grow judicial redress Unit,” subheaded administrative seeks Facility.” It before, pris- to Ya. Shifted “even Inmates As we D.C. noted grievances.” alleged of an account hostility Crawford-El’s toward Crawford- quoted free on officials Occoquan at arrival his apt on irregularity as an regard might ‘troublemaker’ El —that trousers obtained had officer correctional at a Crawford-El, moniker.” lock- prisoners’ in other by searching him for retaliatory act —the misdeliv- alleged The day, says pair. The next extra for an ers course ery of boxes—occurred of- into her Crawford-El, called him Britton Spokane from back transfer Crawford-El’s and her had “tricked” him he and fice told prison a on to federal and thence to Lorton was incarcer- long [Crawford-El] as “so that Florida, over which Marianna, a transfer had everything she do going to she was ated Spokane, Crawford- charge. At had Britton possible.” as for him as make it hard to to to property give his to El was instructed Crawford-El’s and April 1986 Between him. Craw- forwarding to for there officials brought he press, use of successful next was aware alleges Britton ford-El District. against lawsuits variety of him, saying that when importance to boxes’ through pris- allegedly lost one, property on Britton prisoners met two other and he about he recovered negligence, officials’ on Missouri the Western at August on be- complained he others $500; in three Lorton, to route back en Center Correctional lack of class about and a of himself half legal their boxes contained they her that told be- Islamic prisoners’ compatible with food alleg- She cases. ongoing papers needed religious his with liefs, alleged interference she Crawford-El’s edly understood said legal mal- sued, curiously, “for beliefs, and legal property personal for the need the suits while In December practice.” to be sent would that the boxes materials pris- other group of he and pending, were (In Britton con- her affidavit office.10 her Spokane Coun- transferred were oners told of ever was that she the claim tests trip in for the assembled ty Jail. While telling me recall “I do not papers: videotaped. were shackles, prisoners per- in his legal documents there were protested others says that he Plaintiff knowledge of I have nor did property, sonal privacy their a violation videotaping as She boxes.” three sealed the contents responded, “You’re Britton to rights, which to her office sent the boxes she had said any rights.” have you don’t prisoner, lost.) being keep them from Spokane, at Craw- arrival Shortly after at Lor- arriving back August, after In late reporter spoke with again ford-El Britton allegedly wrote ton, Crawford-El front- another December On Post. himto be sent property his requesting Severs Move “Sudden appeared, article page Shortly after- it. received as she soon as Spokane D.C.; Isolation Ties Inmates’ prisoners ward, that some noticed he Firecracker ‘In Puts Prisoners County Jail got had Washington State returning from with Crawford-El It credited Mood.’” was trans- he before Just property. their him quoted and also metaphor firecracker “Property a Lorton ferred, he checked Spokane sent prisoners claiming that the he Ward, him who told named Officer” who litigants Lorton civil “the were small won an uncontested Lorton, lost. Crawford-El supervised trip back 10. On the based $72.50 Britton carrying suit Britton, was claims property Crawford-El well) prisoners as (and on this loss. that of other with him apparently storage the bus put into could property have his sent himto at his facility individual Systems Inmate staff for final writing request destination permission to that prior mailing per- inmate arrival effect after final property sonal destination. to a BOP facility.” Though At still another intermediate stop, the federal Crawford-El’s mother forwarded the boxes prison in Petersburg, Virginia, on to prison him at Marianna, Crawford-El Florida, learned prisoners from other D.C. Crawford-El Brit- had some difficulty getting them, ton had calling been their asking expected. families he had Crawford-El as- pick up them to prisoners’ serts that property they was because be- arrived out- cause otherwise she side prison away. throw it channels. He called parents, who told him his allegations supplying strongest ev- brother-in-law Jesse picked Carter up idence alleged Britton’s malign intent are (Crawford-El his boxes. this, was “upset” at her threat to Crawford-El after the 1986 he since believed he would difficulty have Post article to make things “as hard possi- as getting permission to receive property the ble him” her and to remark Carter about it prison once had left system.) the Accord- throwing the in boxes the trash. But those ing to Crawford-El’s own allegation in the comments —for both of which Crawford-El is Fourth Amended Complaint, Carter only told the source suspect mentioned —are Crawford-El that Britton had told him that self-serving assertions. complaint un- she was concerned about Crawford-El’s legal dermines the “trash” by comment affirma- materials property and other tively and was asserting afraid that said Carter Britton told the boxes would be lost she him sent them giving to she was him the property out of Property the Lorton Officer mailing concern lost, to about its getting an account Crawford-El, and that prisons federal that would Britton’s affidavit supports. forAs the accept shipments

not allegation prisoner of D.C. that prop- Britton Spokane told a Coun- erty. ty That account meshes Jail official with Britton’s Crawford-El legal was “a affidavit, says troublemaker,” which that she asked complaint Carter to the itself defines take property Crawford-El’s that term “only in way to such a insure as to impos- make it safety protection deny its sible loss, to from description and for that the no is apt. The (Britton other by letter Corporation reason whatsoever.” Counsel on also its face stated, suggests that “we had been some confusion by advised about the federal Federal Bureau of Bureau policy Prisons they Prisons that concerning would transfer accept personal personal D.C. inmate’s property property, pris- reducing oners.”) But likelihood that says Crawford-El Britton’s handing also property Britton to his told Carter brother-in-law was a Crawford-El deliber- ate scheme keep “should to it happy away be she did from not throw Crawford- [his Indeed, El. property] the trash.” absence of some reason to believe Britton thought Carter had it in for In the course Crawford-El’s attempts to Crawford-El or was hopelessly incompetent get back, his property lawyer his received a (neither of which is by claimed Crawford-El), copy of a letter from the Corporation Coun- thought prison federal officials would office, sel’s stating: readily much more allow Crawford-El re- As has been our past practice, inmates ceive the property if sent the D.C. De- transferring from DCDOC [the D.C. De- partment of Corrections than if sent from partment of Corrections] to BOP [the fed- outside prison system, transfer of the eral Bureau of custody Prisons] per- boxes to the brother-in-law makes an awk- mitted a small personal amount of ward fit any purpose serious keep property which should be limited per- them addition,Craw- Crawford-El. In sonal care legal items and documents. ford-El’s complaint own states that Britton The letter also said that there were “signifi- telephoned prisoners’ D.C. families cant among differences DCDOC BOP to ask pick them to up prisoners’ those prop- property policies and differences between in- erty at Lorton' —behavior further reducing dividual BOP facilities” and noted that “[i]n the chance that Britton’s treatment of Craw- cases, special we ask that DCDOC contact any ford-El had retaliatory purpose. ago, time, many years not too There was reasonably find that short, jury could hearing judge lawyer or any American when consti- nonconclusory assertions Crawford’s subject an en case was of uncon- convincing evidence clear tute appeals, court of hearing in a federal banc remand, Crawford-El intent. On stitutional brought as a be could plausibly per- even bolster attempt may evidence — court, have district federal claim amplify- discoveiy, byif through part haps I what Before discuss incredulous. been secures he assertions independent ing his resolution appropriate discovery believe to conduct permission district on present law given the state opin- separate Ginsburg’s case— pursuant officials—I immunity qualified issues these controlling on ion, is jurispruden- to trace it worthwhile think on disposition with the opinion consistent to this situation. led us steps that have tial i.e., de- “common grounds, the narrowest justices some Particularly this so because majority, reasoning nominator” about legitimate concerns expressed 780-81 Palmer, King v. implicated “policymaking” judicial degree of banc). no (en adds evi- he (D.C.Cir.1991) If procedural fashioning the substantive grant dence, court should the district Wyatt immunity, see framework summary judgment motion future Cole, against her. federal claims Britton (1992) (Kennedy, L.Ed.2d 504 118 * * * Sealia);1 see by joined Justice J., concurring, Op. at 853- Sep. Judge Edwards’ of Chief also the dismissal vacate Accordingly we fundamen- more 54, overlooking the much retaliation Amendment First Crawford-El’s judicial policymaking con- tal —and Britton, pendent and the troublesome — against claim action of creating the and, causes 1), once in (see involved supra note claim version problem. given us between have the issues resolved has panel (see id.), re- District and the Crawford-El I. for fur- district to the the case mand raise typically damage actions Federal proceedings. ther those immunity concerns So ordered. Bivens as officials federal brought against § 1 of under against state officers or actions concurring: Judge, SILBERMAN, Circuit (hereinafter Act Rights Civil 1871 1983). reads: 1983 § Section serving life Crawford-El, prisoner a D.C. any stat- who, of color under Every person litigant chronic and a murder for sentence custom, us- or ordinance, regulation, ute, a described previously we have whom Dis- Territory or the any age of State Britton, v. 951 maker,” “trouble Crawford-El to be causes Columbia, subjects, or trict denied, (D.C.Cir.1991), cert. 1314, 1320 States any United citizen subjected, 62, 29 121 L.Ed.2d 818, 113 U.S. S.Ct. 506 jurisdiction within person or other (now claim damage brought has rights, deprivation of to the thereof times) official prison against four amended by secured or immunities privileges, for the him against retaliated allegedly who laws, hable to shall be Constitution bring rights to constitutional of his exercise law, suit in an action injured party (and press) talk law suits innumerable re- proceeding proper equity, or “legal material” allowing his boxes dress. (horrors!) by his brother-in-law picked up Ironically, § 1983 (1994). § 1983 U.S.C. 42 from one transferred plaintiff was when in the provision controversial the least another. prison to current (in sharp our contrast to burdensome innovation immunity a new is not Qualified placed on restrictions severe system) due to the it expressed concern insofar some have all, the most it, even it was allowed common-law beyond its extended been Wolfson, Addressing the See permissive of states. law, did not we at common But boundaries. Discovery, 36 Civil Moreover, Clev. Dilemma pre- Adversarial as such. torts constitutional have (1987). 17, 25-27 L. Rev. century was not nineteenth St in the trial 830 Act, 1871 attracting little attention or debate. series of new rights ap- years

And for 100 almost federal plied courts the Bill Rights to the states.3 As a result, read that clearly intended, statute as was the 296 federal rights civil actions to attack the against so-called “Black passed Codes” officials filed in 1961 by Southern war, exploded states after the civil 40,000 into by 1988, over over See, private e.g., Wilson, torts. Lane v. half of which by prisoners. 307 were filed just In 268, period U.S. 59 (1939); S.Ct. 83 L.Ed. 1281 between 1975 and the num- Irvin, prisoner Browner v. 169 ber rights F. civil cases increased (C.C.N.D.Ga.1909) 200%, (dismissing approximately 6,606 case that al- stagger- to a 18,856. leged police that the Eisenberg chief had See whipped peti- Schwab, & Reality tioner striking alleged relative since it Constitutional Tort Litigation, 72 tort). only private (1987). L. But 1961 in In Cornell Monroe con- Rev. trast, Pape, there were cases 5 L.Ed.2d decided under § Supreme years. first Comment, its extended See the statute Rights The Civil to reach Emergence Act: Chicago police behavior of offi- Ade- quate Federal Civil Remedy?, cers who did not claim their actions L.J. were Ind. sanctioned Indeed, under state law. there was little doubt that the plaintiffs Then, had a tort Court, 1971 the in perhaps an remedy under Illinois law. But as is so often even stunning more judicial exercise of poli- true Supreme when the Court hands cymaking, down a fashioned a federal cause of action decision substantially expands damages federal officials for a federal judicial power, the facts were dramatic: thir- tort.” “constitutional Bivens Six Un- Chicago police teen officers broke known Agents into Named Federal Bureau apartment, Narcotics, Monroes’ forced the Monroes to stand naked gunpoint (1971), in L.Ed.2d the 619 middle of the facts again were living room, grim; their children, struck six their federal law and enforcement officials called Mr. “nigger” Monroe without a and boy.” warrant “black into broke the apartment 203, Id. at 81 S.Ct. at the (Frankfurter, J., 492 to a conduct search. He was dissenting part). arrested in front The Court of his wife overrode and children— what seems to who were me to be also threatened with characteristically arrest —for a impeccable narcotics reasoning violation and subsequently Justice was Frankfurter in- (when terrogated, searched, he was relying reasoning on booked. The rather case rhetoric) against him dissent, than was ultimately § turned dismissed. Bi- 1983 vens provision a into reflected the policy that the Court’s post-civil proclivity to war Con- “equalize” gress obligations could possibly not have constitutional visualized. See imposed law Zagrans, on state “Under Color What those Law: A Of” imposed on federal government. See, Reconstructed e.g., Model Section 1983 Liabili- Bolling v. Sharpe, ty, (1985). 497, 500, 71 347 Va. L. U.S. 74 499 S.Ct. The Court’s Rev. 693, 694-95, 98 (1954); L.Ed. 884 effectively construction Butz v. read out of the stat- Economou, 478, 501-03, 438 U.S. ute the “under 98 limitation, color of S.Ct. law” mak- (1978). 57 L.Ed.2d ing it 895 synonymous with the Fourteenth Amendment’s state requirement.2 action To sure, prior be to 1875 and passage Subsequently, the Court discovered a whole general of the federal question jurisdiction The interpretation Court's of "under color of The dissent in Thiboutot indicated that it is "idi- law” only has not been its interpretation creative interpret otic” § 1983 in this fashion. Id. at §of 1983. It litigants allowed § to use 1983 9, 21 n. 100 S.Ct. at 2513 9.n. to enforce statutes that no connection to the Fourteenth post-civil Amendment or the war civil fairness, "incorporation” Bill rights legislation. Thiboutot, See Maine v. 448 Rights begun long See, 1, a 2502, e.g., time before. U.S. 100 (1980). S.Ct. Ames, Smyth 466, v. 525-26, The Court was not 18 that interpre- discomforted its 418, 425-26, (1898) tation would 42 scope § result in L.Ed. being (applying 819 1983 vastly greater jurisdictional “Takings than its counterpart regulation Clause" to state rate of rail- (which was roads). § conceivable basis 1983 for § suits until passed later). was years 1331 some remedy was an sought where tion existed bring a com could party statute, injured an by impercep- “almost The Court injunction. govern a against in state suit mon-law to treat official to have come ... governmental steps appears tible actor. mental he was direct- injunction conferred remedy a defense as raise as then would authority a statute of state abuse pursuant acting ly by federal law be could which defense him —a law in the view federal authority vested or dele statute showing Hart, The defeated Rela- remediable.” ought be For unconstitutional. authority was gated Law, 54 Federal Between State tions prohibi Amendment’s instance, Fourth pro- This L. Rev. Colum. sei searches against unreasonable tion Young, U.S. Ex Parte culminated cess by bringing common- enforced was zures (1908), in L.Ed. 714 28 S.Ct. governmental action trespass law injunction of an upheld which the could an official official, action which an wrong alleged where official state authority viola- claim of invoking defeat Whatever prosecutions. of future the threat Boyd v. See Fourth Amendment.4 of the tive when reasoning in an era validity of this 626-27, States, United general create fed- had license the courts course, (1886). Of 29 L.Ed. law, Tyson, eral common Swift there priori was no assurance.that there Pet.) is no (16 there L.Ed. right guaran always abe common-law finding of an im- Court’s that the question unconstitu official’s remedy teeing a govern- against a injunction right to an plied normally would (although there action tional capacity is far official ment official thinks if one problem only a be), is but of an than the creation ground more solid to believe priori reason an a is there govern- damages against right to implied must violation every all, After an individual. official as mental simply practice Our historical remedied. (with exceptions such a few the Constitution proposition support does Amendment) is concerned the Thirteenth Webster self-executing. Constitution Cf. government. power of on the limitations Doe, 486 U.S. only insofar as implicated (Scalia, dissenting) Individuals J. L.Ed.2d government as agents there they “untenable that act it is (explaining Moreover, every remedy private constitu tortfeasors. judicial opposed be a must years violation”).5 last the hundred has Court tional the reasoning in line of this consistently followed a dif- down 1875, started the Court After injunction; to an right implied finding an that an concluded gradually path. It ferent See, e.g., a pedigree.6 suits lack Bivens the Constitu- action under of implied cause v. compensation. See Jacobs just use without trespass, defendant the In actions 4. 26, 13, States, 78 L.Ed. 54 S.Ct. U.S. 290 trespasser. United against the damages typically seek However, remedy damages (1933). the Eng.Rep. 768 See, Money, 142 95 e.g., Huckle v. explicit textual has argue against and tempted the (1763). might be one While requirement Amendment's support in the Fourth the envisioned the framers that since English paid. See First compensation” be through "just actions being enforced Amendment v. Glendale negat- Church Evangelical Lutheran Fourth Amendment damages of the —where 9, 304, n. 316 impor- Angeles, U.S. 482 9, County Los defense—the government official’s ed the (1987) 2378, 250 96 L.Ed.2d underlying of action 2386 n. cause point is that the tant Con- is the that it "make clear (citing law. cases that state was creature remedy for interference that dictates stitution keep that even under in mind One should taking"). amounting ato rights property with Fitzger- v. Harlow construction most narrow ald, 1875, after argued the Court have Some 73 L.Ed.2d S.Ct. 102 457 U.S. damages personal implied a rarely, also even (1982), some meritorious it is inevitable 396 cases, Court seems remedy. most of these In surpris- be This should barred. suits will action, al cause conceived to though "immunity” from very of an notion since artificially, as admittedly sometimes "defense,” valid entails that suit, opposed ato Wiley v. Sink upon law. the common . based ler, be barred. will claims constitutional (1900), 84 45 L.Ed. S.Ct. U.S. 487, 22 Templeton, 185 v. remedy in damages implied a Swafford The Court (1902), two most L.Ed. S.Ct. prohibi- Fifth Amendment’s to enforce the order remedy, damages implied examples this public cited property for private taking of on the tion Passman, 228, 241-43, Davis v. 442 U.S. 99 100 1480-81, S.Ct. 2264, 2275-76, (1979) S.Ct. L.Ed.2d 846 (1980), quasi-Article legislative function tradition); (explaining this Chamber Com of open-ended balancing of policy different Reich, merce v. 1327-28 goals considerations and is ill-suited for the (D.C.Cir.1996); Collins, Rights,” “Economic judiciary.7 The best solution to the whole Implied Actions, Constitutional and the problem would be the overruling flat of both Scope 1493, 1510 Section Geo. L.J. Bivens —as Rehnquist Justice for in called (1989). availability The historically Pape, Carlson —and putting the issue of recognized right injunctive relief obviates damage remedies state or federal judicially-created need for a damages officials for constitutional torts where be- remedy. As Justices Frankfurter and Bran- longs Congress. states and But since —with (and explained déis implicitly recognized Supreme Court, in accordance pub- by concurrence) Justice Harlan in his Bivens lic choice theory, see generally J. Buchanan independent “remedies” are “rights.” Tulloch, & G. The Caloulus of Consent vary Remedies can based on weighing (1962) (arguing actors, that all rational in- numerous policy considerations even while cluding government, those in pursue power), right being enforced remains the same. its follows own version of the Breznev Doc- See Corrigan, Truax 354-57, significant trine —no retreat extensions 124, 137-39, 66 L.Ed. 254 of federal power (unless, constitutional per- (Brandéis, J., dissenting); F. Franhfurter haps, if by confronted Congress) is a —that Injunction Greene, N.& 205- vain hope.8 The Labor lack damages The of a remedy denigrate does not change or the nature of II. the underlying right. indicated, As I have shocking point factual then, alle- bear mind before gations played no small turning part in qualified develop- question, immunity ment of the in Pape

that the law causes of largely (Many action that Bivens. create journalists problem lawyers immunity describe as a virtue a address- hypothetical es were not Congress; Supreme justice’s created by they disposi- Court were tion to Supreme devised decide accordance with without the facts of legislative (in particular case; they justice sense of mean the positive law) guidance. should decide Justice Harlan how the dispute can- should be didly using admitted his concurring opinion resolved Solomonic policy-oriented Bivens, subsequently methodology and as affirmed then the law should be Court, Lucas, whole Bush fashioned to resolution.) accommodate that 367, 376-78, It is hard imagine a similar outcome in L.Ed.2d 648 Court, that the either case if craft- facts akin to Crawford-El’s had ing remedy, a feels to take presented. free into been account words, Pape if range the policy “at considerations least as Bivens had involved constitutional tort claims broad as range legislature of those a that depended allegations on that the actor’s would consider.” 403 U.S. at 91 S.Ct. at proscribed, motive was I am confident that 2010. As Rehnquist Justice pointed out in the Supreme Court would not gone have Green, dissent in Carlson v. 446 U.S. down path, either especially light in the Court concluded lower federal court silence, remedies in the statutory face of question jurisdiction federal to Bivens, entertain a 388, 398, 403 U.S. 91 S.Ct. 2005- damages suit state officials for their (Harlan, J., concurring), this has been under- plaintiffs' interference with the right to vote in by subsequent Carlson, mined case law. See federal elections since it involved the construc- U.S. at 39 n. 100 S.Ct. at 1482 n. 5. tion application of the Constitution. The Court in these cases was focused on whether the argued It could be Supreme that the questions, suits raised federal Court's legitimacy withdrawal damages remedy, although exception, from Lochner is an ques- two but admittedly tions overlap. do course process substantive grew due back anew "politically in gardens. correct” To the extent that the Bivens Court relied on authority Court's private to damages infer test. Under the Martin impact as mate that motive-based difficulties probative standards, quite appear diffi- it would involve, virtually both because necessarily wrongs discovery, let alone gov- gain to by plaintiff a a taken cult for legal ostensibly action any bad moti- trial, official’s thought unconstitu- if the can be a official ernment mo- making out the constitu- by key to unconstitutional is the prompted vation tional Still, forth test as set tional tort. tive. prospect holds out Judge Williams Justice) (now Judge light, in this Viewed I I am not sure application. in confusion require pleading” “heightened Ginsburg’s showing a just what sort understand to evidence allege direct plaintiff that a ment “specific, to meet must make plaintiff for actions motive an unconstitutional show evidence, af- non-eonelusory assertions of might legal perfectly be otherwise that would for sum- materials or other suitable claim fidavits keep a Bivens effort thought an be Op. Judge Williams’ judgment” test. mary moved facts that kinds of close to added). that dif- how action (emphasis the cause of Or create at 819 Supreme Court Kennedy’s requirement Metro v. D.C. Martin from Justice place. See fers in the first (D.C.Cir. specific, put F.2d must forward Dep’t, “the politan Police 1987). evidence which es- Theoretically, nonconclusory allegations circumstantial factual evi direct Gilley, than inherently Siegert weaker is not malice.” tablish opinion Judge dence, Williams’ think 114 L.Ed.2d but I good deal— added). how either Or (emphases overstates matter — no reason have that “we argues it when Circuit’s from the differs Seventh standard than, screen, as a it did better “[ujnless think that plaintiff has the phrase cryptic every nine out of rejection of say random hand, the defendant wins of a kernel case Op. at 819. Judge Williams’ claims.” ten of discov- immunity advance grounds of an unconstitutional evidence direct Since v.Thomas, Elliott ery.” virtually legal act is ostensible for an motive (1991). Judge Williams’ example, For would seeing (I not recall ever do available never produced an if the disposition differ decided), the Martin case since private conversa- asserting that in a affidavit ef requirement pleading heightened Martin unequivocally defendant him the tion with motive fectively kept Bivens unconstitutional him, for punish intended that she stated in our discovery and trial going cases “legal pa- by giving his vexing litigation, result, no matter years. That circuit for Justice Would to his brother-in-law? pers” desirable, im reached, is is not how I fear Easterbrook’s? Judge Kennedy’s or below, by explain I contemplated, as plicitly certainly while approach, Judge Williams’ Fitzgerald, 457 Harlow Edwards’,9 promise will Judge preferable Thus, whatever L.Ed.2d very litigation with further good deal of circum versus in the direct logical flaws supposedly relief providing return little designa or the distinction stantial cases. meritorious requirement, pleading” “heightened tion of to Martin to hold even promises content approach been Ginsburg’s Judge Edwards’ under variance ungoverned precedent confusion—and more —which re judicially By the most judges. reasoning would of district among practice long as the court showing based upon choice—but strained permitting doctrine, pre I plaintiff’s to reexamine determined within “specific evidence does approach than different discovery fer a somewhat command, will uncover that Judge finding in jury Williams. to sustain sufficient Ginsburg favor,” asks Judge plaintiff’s clear Judge Williams’ practice, actual In crystal ball or her judge use his summary each applied at convincing test The ex ante of decision. a rule than ulti- rather may have the same well stage judgment discovery for entitled agree is Williams' discussion agree Judge quite Op. at Judge Williams' purposes. Intell Co. Narcotics Tarrant certain of Leatherman Unit, 507 U.S. igence & Coordination 820-21. also L.Ed.2d potential impact on defendants’ tionary behavior action almost inevitably are influ- would not under this formulation differ by enced experiences, decision maker’s meaningfully Judge position. Edwards’ values, and emotions. These variables ex- my view it will induce more paralysis than plain in part why questions subjective discouragement of wicked per- actions. It is intent rarely so can by be decided sum- haps simplest one of the axioms of law and mary judgment ... economics that overdeterrence as well as un- Id. at 102 S.Ct. at 2737. The Court yields derdeterrence inefficient results. See Suing specifically noted Schuck, “petitioners P. advance GOVERNMENT 68-75 persuasive arguments that the dismissal of I think straightforward solution, the more insubstantial lawsuits without trial —a factor following reasoning, Harlow’s is to hold that presupposed in the balance of competing in- when the defendant legitimate asserts a mo- by terests struck prior our requires action, for his or objective tive her an cases— adjustment ‘good faith’ standard inquiry pretextuality into the of the assertion established our decisions.” Id. at is allowed. If the facts establish that 102 S.Ct. at 2736. gravamen The purported motivation would have been rea- petitioners’ argument sonable, qualified was defendant is entitled qualified immunity immunity. Halperin available under Butz was under- Kissinger, 807 Cf. 180,188 (D.C.Cir.1986). mined district “routinely courts which Although Har- de- low dealt nied specifically subjec- with a motions for judgment different on the aspect tive of an ground official’s that the claim motivation —his of malice or bad faith knowledge appreciation of governing automatically con- raised a triable issue of fact as Judge notes, stitutional law—as Williams to the defendant’s state mind.” It would Court in Forsyth, Mitchell v. be odd if the Court per- found this concern 2806, 2810, 105 S.Ct. yet suasive and qualified reformulated the (1985),read having “purged Harlow as quali- immunity inquiry in way that was not immunity fied subjective doctrine of its com- responsive difficulty of defeating at ponents.” See also Anderson v. Creighton, summary judgment intent-based constitu- 97 tional suits. Nor is it all at clear that allow- L.Ed.2d 523 (explaining that the Har- official, Judge Williams low Court “completely qualified reformulated it, puts Judge Op. Williams’ at to mali- immunity principles along not at all embod- ciously perpetrate a constitutional violation law, ied in the common replacing inquiry (so long as the right so subjective into frequently malice so required clearly established “merely that a reasonable at common law with an objective inquiry into person” it) would not have known is less legal reasonableness of the official ac- “egregious,” Judge Op. Williams’ than tion”). important, More Harlow itself un- allowing the same official to objec- take an equivocally “[ujntil states that this threshold tively reasonable action that would be blame- immunity question resolved, less the defendant’s motives benign. were should not be allowed.” 457 U.S. at very logic my colleagues leads thought That certainly strong- reject the distinction between direct and cir- ly suggests dispute factual over wheth- evidence, cumstantial me, it seems to could er the legal defendant’s otherwise action is rejection lead a similar of the distinction illegal rendered because of an unconstitution- between subjective two (knowledge elements al motive cannot defeat a immunity motivation) of the law and actual of the con- defense. The Harlow Court manifested tort/qualified stitutional immunity analysis. clear awareness the peculiar difficulties litigation Yet, over kind of motivational notes, correctly Williams disputes entail: circuit courts have shrunk from that inter- There are special “subjective” pretation costs to in- They Harlow. so, have done quiries .... In with thought contrast appears, because of a concern that has driven processes accompanying “ministerial” much of American jurisprudence in the latter tasks, judgments surrounding discre- half century; twentieth prospect race. of her because her fired See, permissibly Ken- e.g., discriminatory act. racially plaintiff was that claims Law, The defendant Racial State, nedy, The Criminal If constraints. budget because discharged Comment, 107 Haev. L. A Discrimination: been would have rationale the defendant’s impact (1994) (discussing the Rev. the circum- under objectively reasonable law). Thus of criminal evolution race on the summary stances, on wins the defendant recognized Elliott, Circuit the Seventh contrast, trier if a reasonable judgment. that: budget that constraints find fact could of Harlow program out Marrying the cir- under objectively unreasonable were defen- attributing to the imply seems instance, divi- (if, the official’s cumstances (objectively) they intent the best dants or of funds recently a windfall received sion circumstances, and under could have workers), the of additional number hired a clearly the time the law at asking whether Halperin, proceed to trial.10 case would Cf. an in- such persons that establishes (noting the defendants that F.2d at 189 that Yet Constitution. tent violate they “adduce judgment if win on elimi- equivalent the functional would be jury ... no reasonable facts that sufficient is mental state awhen nating all recoveries objectively unrea- was it could conclude it is wrong the definition part of —as acting for to be for the defendants sonable discrimination, excessive of racial in cases reasons”). security national many other punishment, and torts. noted, Halperin sure, I have as To be added). Similarly, (emphasis security holding F.2d at 344 national our we limited applied actually so protect we Halperin, where need to cases, particular perceiving cases,” security Harlow, to “national moti- probing at least into branch the executive sug- revealingly we issues. sensitive such see touch vations Harlow meant thought wiretap was to conclude gested that government’s There the permit all intent inquiry into it was motivated preclude unless to be unconstitutional the basis on appeared it “to discriminate security concerns —so a defendant by national put motiva- at 186. Id. government race.” if it was as is But, that formulation I think at issue. tion does extension logical its Giving Harlow action, discharge of a Any deceptive. problems any special view, not, my present phrased say, could be because, employee government discrimination, encouraging racial illegal if motivated way; either the same shortly, there are discuss I will consti- discrimination by unconstitutional action. discriminatory official restraints Halperin Perhaps all the if not. tutional to all unconstitu Therefore, I would extend “validating” aof by the notion panel meant adopted principle actions tional motive law, that, matter of substantive as a intent is govern if the held where we Halperin, prove government on the was burden Bi (wiretaps) in a actions defendants’ ment security by national driven was motivation legiti its by a “validated” would be case vens agency suppose But concerns. motive, the defendants security mate national alleged national employee discharged an they purport immunity if are entitled claimed it employee security reasons reasons, unless security national act for discriminatory grounds. racially was for objectively it conclude jury could whether explain not does Judge Williams Aact. to so defendants for the unreasonable Halperin or his circumstances ap under its ease illustrates hypothetical simple (Indeed governs. convincing test clear that a claims Suppose a plication. Williams, Ginsburg, nor Judge neither cov judicial official (perhaps defendant the relevance discusses Judge Edwards legislation, VII or Title Service ered Civil making it respective Halperin to their tests — Davey, 890 Whitacre wholly indeterminate it is orphan a silent denied, (D.C.Cir.1989), cert. —-so pro- banc by this en is affected (1990)), im- whether L.Ed.2d 810 motive, that (or an unconstitutional acted with course, government official Of matter. another deny defendant that the government) does ceeding.) Halpeñn’s reasoning avoids this because he is a pest self-evident as analytical difficulty: if the challenged defen- opposed to the grandly phrased more “be- actions, dants’ regard without to their actual cause of his exercise of his First Amendment intent, are consistent objectively with an rea- rights”? intent, sonably the defendants are entitled to The truth of the practi- matter —as most immunity. And if even the defendants are tioners in the labor and EEO field well burden, not able to meet this they are still know —is that a determination as to the exis- immunity entitled to they if prove are able to tence and relative importance of an illegal that their actual legitimate.11 motivation was difficult, motive is artificially relying often on (and Judge Ginsburg lesser extent certain presumptions. And the behavior of Williams), Judge although assiduously avoid- potential defendant ex typically ante is ing a reference to Halpeñn, my criticizes directed at avoiding those pro- indicia of the approach creating inevitable incentives to scribed motive that will tend to be relied But, unconstitutional course, behavior. upon in that substantive area of the law. same criticism can against be made ei- (Can imagine one employer an deciding positions ther their they insofar as whether discharge employee for theft strengthen a defendant’s hand even fraction- attempting, perhaps through yoga, to cleanse ally Judge over position. Edwards’ There is his mind of hostility because of the em- simply escape no judgment, from a without status?) ployee’s union data, any empirical as to along where spectrum to draw the line between Still, the inter- it deny that, is difficult to at least of discouraging ests unconstitutional behav- theoretically, Judge Williams’ view even ior avoiding peculiar difficulties that more Ginsburg’s position creates a the threat of personal damage against suits greater disincentive to officials public officials entail. taking action with an unconstitutional motive But, than does mine. any event, personal In damage I do suits not think the matter is decidedly quite only not the simple or disincentive. We as Judge self-evident Gins should bear in burg’s mind my of what sloping colleagues downward demand curve. We fail to take sufficient bear should cases, mind that account —that there are these restraints often employment arise behavior context, other than defendant, § 1983 damage Bivens even if suits. he or When offi- part she acts in cials proscribed motive, with a rights, violate citizens’ they typical expose motive ly themselves contributing disciplinary sanctions, factor to a harm to decision. professional This their terribly has led complicated reputations, jurispru and reduced opportunities dential efforts develop See, techniques to advancement. e.g., mea SchuCK, sure importance supra, relative pro Unlike normal tort law, scribed motive. Line, federal Wright NLRB v. and state officials are sworn to Cf. (1st Cir.1981), uphold denied, Constitution; cert. violating one’s oath may 102 S.Ct. reputation mean a L.Ed.2d 848 for deceit and unreli- (1982); ability. Pñce v. Hopkins, Certainly Waterhouse a rational actor would 109 S.Ct. result, avoid L.Ed.2d only to avoid a decrease as modified Rights Civil in his or Act of her value employee. as an Cf. 1991, Pub.L. No. Epstein, Stat. Will, the Contract at Defense of (1991) (codified and amended scattered U. Chi. (1984); PosneR, L.Rev. R. 1993)). sections of 42 U.S.C. (Supp. V Take OVERCOMINGLaw 109^4 To the ex- present case. How really would we dis tent an individual retribution, fears moral tinguish between the defendant’s hard feel oath will further proper induce behavior. (if ings they established) could be hope toward the I will forgiven for assuming that 11. Harlow allows the use of evidence concern- standard, known of the legal relevant the defense ing subjective motivation if govern- should be sustained." 457 U.S. at benefits ment. pleading “[I]f the official notes, defense at 2738. The Court then crypti- somewhat extraordinary claims cally, circumstances and can again, that "[b]ut the defense would turn prove that he neither knew nor primarily should have objective factors.”

837 immunity from dam- disincentive, with absolute cloaked monetary oath, a like an criminally for willful punished ages, could offi- government behavior can affect rights on the constitutional deprivations Corp. v. J. DeBartolo Edward cials. See 242, § the criminal of 18 U.S.C. strength Trades Bldg. & Constr. Coast Florida Gulf 1983”). § analog of 1392, 575, 568, Council, U.S. 485 Webster, (1988); 486 1397-98, 645 99 L.Ed.2d causes action providing statutes Federal (Scalia, J., at 2059 613, 108 S.Ct. U.S. particularly government itself — pun- fear divine Individuals who dissenting). provide ad- targeted at those discrimination — downward-sloping de- face also un- government ishment deterrence.14 ditional rises, of sin the level as mand curve: official miscon- doubtedly looks askance at See, e.g., liability. increases. punishment subjects it to duct Accountability in Oren, Immunity Civil and are Moreover, federal statutes a number Pay?, 50 Litigation: Should Who Rights con- unconstitutional governmental aimed (1989) (“Deterrence 935, 1003 L. Rev. Pitt. money of suits for absence in the Even duct. where con- at the level most effective ... will be de- officials damages,12 government and not lies. It is trol prosecu- criminal threat of by the terred ability to has the employee, which individual gen- possess no officials tion.13 Government misconduct, re- discipline and change policy, See, e.g., actions. immunity from such eral And training.”). kind of quire a different 409, 429, Pachtman, 96 424 v. Imbler or D.C. of state respect to the actions with (1976) (noting L.Ed.2d 128 47 S.Ct. are, officials, Frankfurter as Justice there that the suggested “never has that the Court damages. noted, for state of action causes im- compel civil policy considerations con- panoply of remedies as this also Insofar government officials munity for certain lacunae, Congress to it to I would leave tains of the criminal beyond the reach place them by the Su- gaps tolerated them.15 The fill long been judges, who have Even law. the civil service disci- supervisoiy within abuse plaintiffs can sue §to In addition 12. structure); Age Em- and Discrimination plinary monetary U.S.C. under 42 relief for officials (civil (1994) Act, §§ U.S.C. 621-634 ployment 29 (civil denying persons (1994) for action § 1981 on employment based discrimination for action pro- equal of all laws and benefit “full (1988) Act, § 794 29 age); Rehabilitation U.S.C. security persons and ceedings” guaranteeing on the (civil basis action discrimination for (civil interference for property); action § 1982 disability). rights the basis of property with citizens' (civil conspiracy de- race); for § action 1985 Lucas, 15.See, laws); e.g., v. Bush protection equal persons prive (1983) 2404, 2417, 76 L.Ed.2d prevent (civil failure to § action for to civil service (declining to Bivens action rights). extend § conspiracy with interfere existing assuming while employees, even notes, quali- Ginsburg Judge Admittedly, as complete for provide relief do not remedies apply for immunity may to these actions fied that Con we convinced plaintiffs, "because damages well. money position decide whether is in a better gress served creat public would be interest not ing (1994) (criminal See, § 241 e.g., 18 U.S.C. it"); Chilicky, Schweiker "injure, oppress, threat- conspiracy to action for en, (1988) 101 L.Ed.2d of his person in the exercise or intimidate” light remedy of an (refusing a Bivens to create (criminal for rights); § action by Congress and not devised scheme elaborate rights on person's constitutional deprivation of a "[wjhether response that its we or not believe by reason person being an alien or account body Congress is the response, the best race). of his compromises making charged the inevitable complex design of a massive required in the Mathis, Act, See, program”); Spagnola 28 U.S.C. Claims e.g., Federal Tort ... banc) 1988) (en (D.C.Cir. (holding that (providing a cause of action § power to fashion activity consti- withhold their must governmental "courts some federal put Congress law); has damages the Civil when VII of remedies Title tort state tutes a under pub system administer seq. comprehensive §§ place 2000e et Rights Act of U.S.C. damages inadvertently' omitted 1993); rights, Act (1988 ‘not Service Reform lic Supp. V Civil & claimants, plain (codi- and has certain 92 Stat. Ill remedies No. Pub.L. preserve courts ly expressed intention that 5 U.S.C. sections of scattered fied amended omitted) (citation (emphasis Special remedies” (1994)) Coun- Bivens (establishing the Office added)). allegations of prosecute investigate and sel to preme this circuit undermine serve less as necessary deterrent to uncon- Ginsburg’s argument that without (to re- stitutional conduct put mildly) than aas suits, § sort to 1983 and Bivens individuals diversion from the monotony prison of life to may like Crawford-El not have redress. plaintiffs Crawford-El, such as injury whose Schweiker, example, for the Court acknowl- is the having inconvenience of some boxes edged respondents, “[t]he that trauma to and being turned over to his brother-in-law. them, thousands of others surely like must Perhaps all sides this dispute would have gone beyond have anyone what of normal been better prison off if the officials had sensibilities would to imposed wish on agreed provide to an alternative form of en- Schweiker, innocent disabled citizens.” Crawford-El, tertainment to maybe free ca- 428-29, 2470. Nonethe- ble, in return for not having go to through less, the Congress’ Court to deferred deci- expense and hassle of this lawsuit.17 sion gap. to Similarly, whether leave * * * * * * Spagnola, this Circuit denied the appellants’ Although my reading of Harlow will re- that, argument because “no remedy whatso- duce the costs to officials—and ever” existed for aggrieved individuals by public by Bivens actions and the personnel minor —caused actions under the Ser- Civil impact Pape of §on much the better Act, vice Reform the court obliged to would be Congress legislate to on the remedy. create a Bivens This deference subject whole as it aspects has certain makes as a practical sense constitutional and prisoner suits. Supreme matter; has given rec- their greater resources and ognized that does, when and if it information, legislators access federal to are more judiciary beat hasty should likely retreat. judges than district court See to reach the Bush, 368, 390,103 462 U.S. at socially most S.Ct. at beneficial result.16 2417. event, In any gaps there are real is doubtful: only 30 Bivens suits out of GINSBURG, Judge, Circuit concurring: 12,000

more than in a monetary resulted judgment plaintiff for the at the agree trial level I with the clear majority my with only judgments actually having colleagues who conclude that the four direct-evi paid. been See Written Statement of John J. dence rule of Martin v. Metropolitan D.C. III, Farley, Director, Branch, Torts Civil Di- Dep’t, (D.C.Cir. Police vision, Department Justice, 1987), should be abandoned. I also concur in Litigation Section of the Bar of Judge the District opinion Williams’ requires insofar as it 1985) (May Columbia at 1. Obviously, the § that a plaintiff or Bivens who seeks majority vast suits these are damages meritless. from government official for a Fallon, See R. D. Meltzer & D. Shapiro, prove tort must the defen Haet and Weohsler’s The Federal Courts (where dant’s unconstitutional motive that is (4th ed.1996) ANDTHE tort) FEDERAL an element of SYSTEM and clear convinc (“The view that constitutional tort actions are Judge evidence. details, As Williams less likely prove to meritorious plaintiff than civil will weight feel of this burden litigation has been pris- confirmed as to both at trial but also in opposing a motion oner nonprisoner ..., actions although it summary judgment; in both contexts the is in the former general class that the plaintiff lack of will present striking.”). substance is most Prisoner jury suits could consider clear and convincing See, Bush, e.g., 462 U.S. at 103 S.Ct. at weighed considerations that must be ap- (“Not only Congress developed has consid- praised. That appropriately function more familiarity erable balancing governmental laws, those who write rather than for those efficiency rights employees, it also but them.”). interpret who may inform through factfinding procedures itself such courts.”); hearings available Congress already steps has taken to limit Gilman, United States v. prisoner suits. See Litigation Prison Reform Act 511-513, 695, 697-698, 98 L.Ed. 898 al, § Pub.L. No. 801 et (1954) (“The policy selection of that which is Stat. 1321 advantageous most whole involves host evidence; as convincing by clear case mo- unconstitutional defendant’s proof slope curves we are demand sure as tive. more of a there will be and that downward however, concur, cannot (or penalty) goes price behavior when greater even place an attempt Williams’ raising the down, can be confident we summary at the upon the burden persuasion will embolden plaintiffs burden require the dis- He would stage. judgment to take officials Government some additional judgment prior grant trict are unconstitutional. they know actions already discovery unless magnitude of cannot know the Although we motive the defendant’s in hand evidence (i.e. curve slope of the demand effect the that “clear and jury could find a reasonable that conduct), Judge agree with tortious rather bold intru- convincing.” That seems taking this justified in are that we Williams management of court’s district into the sion litigating the cost step to social contain in which we fact-finding process, area the upon defen- that turn the torts constitutional judge. The con- trial the defer to generally dant’s motive. First, Judge be twofold. would sequences however, compensation not put colleague, would take proposal My would Williams’ Harlow; plaintiffs step beyond with the only of even this second beyond the reach but consequence plaintiffs burden claims—a the raise meritorious he would not most the Fitzger- plaintiff to require the persuasion with Harlow but also consistent arguably 2727, 2736, compel ability to 102 S.Ct. ald, without obtain evidence likely Supreme to have most production which from those its 73 L.Ed.2d deserving plaintiffs dem- plaintiff can that some whether accepted it. No matter to in order chance —or compensation has a reasonable that he be denied onstrate would certainty litigation against obtain- a virtual costs that matter the social reduce —of Second, Judge or even defendant from the officials. such evidence an increase of the party, would invite such as one defendant’s approach a third Williams’ deny him eoworkers, torts that are would Judge of constitutional Williams in the number further reduce consequence discovery. difficult to This any more would committed —a lia- tort Harlow. effect constitutional square with the deterrent justi- point what is perhaps to a below bility, Principles I. General fied. Harlow, we must to relating case Judge point; Judge overlooks Williams role of compensatory only the not consider that us up to but reminds faces Silberman liability its deter- but also tort constitutional decidedly not are damage suits “personal in Har- rule announced purpose. rent con- unconstitutional only disincentive” frequency increase probably did low The federal Op. at duct. Silberman knowingly violate public officials with however, justify cites, do not he statutes rights. An official constitutional someone’s would Williams that he or the balance contemplat- action he that the knows who plain- injured the interests between strike constitution- an individual’s ing would violate avoiding un- public interest tiffs and the a court hardly be confident rights can al offi- against government litigation founded precisely, that the disagree later will First, n.12. Op. at 837 —more Silberman cials. action the official’s conclude will motive- all the do reach those statutes law under objectively reasonable plaintiff for which torts based Harlow is at the time. clearly established § 1983. or Bivens redress under can seek ante, This is comfort, to that official. ex cold damages seeks Second, plaintiff who that the say in Harlow why could the Court any of cited official under against public no “provide li- there announced rule greater access no statutes conduct.” 457 to lawless cense same sues for the plaintiff who than does 2738-39. 1983; qualified §or remedy Bivens under per- official public immunity shields about the same statement cannot make We par- liability regardless damage sonal prove his requirement type brought against action plays. ticular him. A prudent more discriminating Hawk, (5th approach See 72 F.3d 445 n. 7 may Todd preserve the de- —one Cir.1995) (“Racial discrimination claims sired deterrent lessening while still the bur- brought subject § under placed upon den now public defendant offi- qualified immunity”); defense Hobson v. provide cials—would guidance more Wilson, (D.C.Cir.1984) (“sec- than given we have heretofore to district 1985(3)encompasses tion actions judges fed- faced of balancing, task case officers, course, subject, case, eral consider- competing values accommodated qualified immunity”). ations of the institution immunity. We rely them, could upon then normally as we any remedy In order to obtain or do, manage the fact-finding process that sanction, impose prosecu- or my colleagues would truncate with clear but respectively tor will to show that some Draconian rules. public prohibited official acted with a mo- racial, religious, gender or discrimina- When a defendant files a motion sum- tive— tion, protected speech, retaliation for mary judgment what plaintiff argues and the you. Although public the officialwill be he discovery needs in order to withstand the personal liability and, 56(f) motion, shielded from perhaps, Rule invests the district counsel, from (1) the cost of he will retaining deny not with discretion to the motion for upon time, be shielded from (2) the demands his summary judgment, continue the motion injury reputation, risk of to his pending discovery, emo- or “make such other likely tional distress to attend an just.” adversarial order as is In a involving quali- case inquiry basely into whether his actions were immunity, fied the district court abuses motivated, possibility or the unpleasant discretion if duly only fails to consider not (such consequences apart litigation from the competing parties interests of the in—as losing job) inquiry his shows that litigation civil also the social costs —but improperly actions were motivated. discovery Effec- associated with against gov- tive deterrence of unconstitutional conduct ernment official. depends upon unavoidably exposing public Hence, while this court acknowledged might officials to some risks also chill that “in the summary mine-run of cases” proper them in the exercise their discre- judgment generally inappropriate until all tion. discovery Martin, completed, has been Therefore, rule, that a particular such as F.2d at recognized we have also Judge proposes, one Silberman pleas would “creditable immunity official remove place leave in some effect deterrent because eases from the mine-run category,” id. at types some might of cases still be brought Although 1436-37. reject we now then-

tells us little about whether rule Judge strikes Ruth Bader Ginsburg’s elevation of appropriate balance between our evidence, interest direct over circumstantial see id. at in deterring generally constitutional torts ought we forget her description and our reducing interest in the social our costs task in a ease such as this —to “leav[e] of litigation against public officials. Judge space some discovery” for while “mini- suggests, Silberman upon based the low miz[ing] suc- imposed upon burdens govern- actions, § cess-rate of Bivens that ment officials.” Id. at 1437. there is not much out there to deter. Silber- In Martin required we man Op. consider, at 838. He does not how- make allegations factual sufficiently precise

ever, is, part, the low-success rate to enable the “employ district court to with result qualified immunity of the doctrine and particular care sensibility large [its] au- legal rules. thority to exercise discovery.” control over

We cannot much know how additional un- Id. at expected 1437. We that district courts proposed by mischief the rules protect would government officials “un- from Judges elicit, Silberman and Williams would necessary litigation” by involvement [] but that enough proceed seems reason “permit[ting] particularized interrogation of with more caution than either of them dis- the defendants purpose circumscribed space more leave motive would any sub- there is ascertaining whether Judge Silber- would Williams factual alle- than specific plaintiffs stance” man, public protect still at 1438. Id. gations. discovery against pointless Govern- costs back, as Chief looking further than Rather officials, usurp the dis- and would ment does, ex- concern Judge Edwards authority over the course trict court’s Hobson, F.2d at pressed Moreover, I no reason litigation. are able to plaintiffs circumstances “in some willingness or abili- district court’s doubt speculative very broad paint with case the balance in each ty to strike anew stage,” we should pre-discovery at the brush immu- qualified doctrine of underlies the Justice path along the go forward experi- Indeed, judge, a district whose nity. Consider- in Martin. pointed us Ginsburg discovery is far management of with the ence litiga- with costs associated social ation of the ours, familiarity than whose more extensive (which, as Harlow officials public tion litigants is more the case and with with discovery) teaches, heavily against weighs immediate, controlling tools for and whose the district to this extent constrain should more litigation subtle the course summary to continue discretion court’s eminently for this task. precise, is If, discovery: pending judgment motion moves the defendant when Application to this Case II. present evi- cannot judgment, colleagues who conclude finding my jury agree support a that would dence adequately alleged a viola- an unconstitu- Crawford-El acted with defendant that the law clearly should tion of established motive, then the district tional this case remand must therefore summary judgment un- and that we for grant the motion Op. at establish, upon court. See Williams based to the district plaintiff can less moves for Britton But if on remand may without the 825-26. as he evidence discovery and judgment prior to summary to which he discovery and facts benefit substantially supple- cannot attest, likelihood a reasonable Crawford-El credibly can us, then would it to record now before sufficient ment the evidence he would discover the district for of discretion allegations re- be an abuse factual specific support his it deny or continue the motion court to motive. garding the defendant’s discovery. pending requir- speaks of too Edwards Chief that additional likelihood

ing a “reasonable Summary Judgment Standard A. The to buttress discovery will uncover Inc., Lobby, Liberty requir- In Anderson claim,” not the same is but that 2513-14, likelihood, spe- upon based ing a reasonable ex- Supreme Court command, L.Ed.2d plaintiffs cific evidence within court should determine a district plained how evidence suffi- discovery uncover will submitted evidence plaintiff a plain- whether finding in the jury a sustain cient to judgment summary Moreover, withstand Judge’s em- sufficient the Chief favor. tiffs prove an ele- plaintiff must when the ability “paint motion plaintiffs’ upon some phasis it was brush,” claim—in that libel case of his ment speculative and only with broad convincing evi- by and clear actual almost court’s unfet- upon the district malice — cases, (in dence: the mine-run discretion tered is) summary judgment to continue issue the evidence genuine no is [TJhere a sub- discovery, suggests pending affidavits opposing motion in the presented expectations of the quantity in our to allow difference caliber or stantial insufficient malice court. to find actual district finder of fact rational convincing evidence. clear pursue limited plaintiff to Permitting a summary Thus, ruling on a motion that he has only upon showing the evi- view judge must judgment, turning up evidence likelihood reasonable through prism presented dence and convinc- jury consider clear could It evidentiary burden.... substantive unconstitutional defendant’s ing proof of the say jury makes no sense to that a paragraph could 6 of his fourth amended com- reasonably party find plaint, for either without Crawford-El declares that fact boundaries its ultimate decision must and these standards and boundaries some ern its deliberations and within what provided by benchmark as to what standards applicable evidentiary are gov- fall, ward her, civil festing a [1] Ms. disentitled treatment. prisoners Britton view that a cavalier attitude —mani- persistently ^[2] dignity, prisoners Ms. Britton was hos- were beneath displayed unworthy to- standards. plaintiff, particular, tile to because she knew ... had been in charge of holding

Our that the clear-and-convinc- the law library helped many [and] had proof standard of should be taken into prisoners prepare grievance ... forms or ruling account in summary on judgment appeals actions, disciplinary and had a denigrate motions does not the role of the reputation for asserting legal rights jury. It no means authorizes trial on knowing the procedures administrative Credibility determinations, affidavits. doing so. [3] Ms. Britton evidence, deemed weighing of the drawing and the big “too for his britches.” legitimate inferences from the facts are functions, jury judge, those of a wheth- The first sentence merely establishes ruling er he is on a motion prisoners Britton did not like generally; judgment or for a directed verdict. The says nothing specific about alleged her un- evidence of the non-movant is to be be- constitutional motive. The second sentence lieved, justifiable and all inferences are to states a fact mind, about Britton’s state of drawn his favor.... may testify Crawford-El without laying a foundation. See sum, Fed.R.Civ.Pro. we conclude that the determina- 56(e) (“affidavits shall personal be made on tion given of whether a factual dispute knowledge”); (accord) and Fed.R.Evid. 602 requires jury submission to a must be and 701 (“testimony in the form guided opinions by the evidentiary substantive stan- or inferences is limited to opinions those apply dards that Thus, the case.... inferences which ... rationally based dispute where the factual concerns actual witness”). perception malice, The clearly third a material issue in a New sentence, provided context, without ease, York does appropriate Times sum- why tell us Britton said that mary judgment question Crawford-El will be whether was big “too for his britches” or even wheth- the evidence in the record support could er the statement hostility. manifests jury finding reasonable either that plaintiff has shown actual malice clear In paragraph complaint, Craw- convincing and evidence or plain- that ford-El declares that tiff has not. Ms. Britton among was those who were hostile to the Inmate Thus, Grievance Committee although plaintiff is entitled to plaintiffs and to efforts to seek have all redress rational inferences drawn in his fa- prisoner grievances. On one vor on occasion intermediate facts —such as hostility, plaintiff when typing was [Housing in and this case—those must up facts add to clear Adjustment] papers Q Board in the and Block convincing evidence of the ultimate facts office, Ms. Britton in came Cpt. said to (1) that he prove here, must that Britton in — (then Lt.) Brummell a caustic manner order to against retaliate Crawford-El for Brummell) (Cpt. she should watch out exercising rights his constitutional know- plaintiff and make using sure he wasn’t ingly gave legal papers Crawford-El’s to his typewriter up to write [grievance brother-in-law. forms] or lawsuits. As Ms. Britton said Complaint B. Crawford-El’s this she plaintiff stood over to see he what typing. was Let us now look at Crawford-El’s sworn

declarations they to see whether are suffi- concern, Britton’s even if caustically ex- cient to withstand Britton’s no pressed, doubt immi- that Crawford-El not conduct his nent motion judgment. jailhouse In practice law supposed when he was evidence ford-El In article fendant period, ter there. she asked office. the visit Charge of Dorm said that had done tor Ms. Britton seek redress ^[7] ed and Ms. denied cused coworkers incarcerated get plaintiff failed she ment in thing him as paragraph performing application Ms. ignoring Britton made day declares she was tricking Ms. Britton their address Corporal Britton Britton became possible. had embarrassed after the hostility to Crawford-El’s by the Q it. Plaintiff he had to said that by having the published Block. had placed had, she plaintiff for 12 of naming the prisoner administrative her. ordered reporter. When approved do Barrett, him if he [first she asked tricking her. A K2, was so telephone to make ^[11] [April ^[9] showed few long as going to restrictive Washington Post] visibly upset. grievances. escorted complaint, Craw- plaintiff into When enraged and Ms. pointed out then Officer reporters her before days reporter had it as hard him how call considerable work her the Britton said plaintiff was application. 1986], do later arranged trying to plaintiff Plaintiff plaintiff confine- efforts is not every- come. effort invit- visi- her de- Ms. Af- her ac- he prison swearing Jackson judge,” and must ment motion Britton tions ... were to corroborate Cir.1992) (Posner, declaration Recall movant brother-in-law to deliver Crawford-El’s vated. ever; convincingly indicate Virginia in-law in a moment ered Crawford-El’s prisoners, that she sent (according to Crawford-El’s oner’s come Suppose Britton evidence, prove an to the federal to collect without instructed, again on a officials), property Anderson, is to be has not Britton contest” September was who, Duckworth, with her threatening anger in a case where jury more element calling the it. was believed.” like should allegedly made if a contradicted “[t]he J.) (§ over concrete functions, in which “[Credibility determina- Crawford-El, property unconstitutionally moti- (or Corporal family 1989, at the same time own sworn statement. that Britton’s prison April such contest by clear alleged families of property discard member own 1986; summary judg- not those of Crawford-El’s action the threat in threat, how- Petersburg, declaration) of the non- clearly and were facts, see she Supreme convinc- Barrett) brother- plaintiff decision arise— did not deliv- being pris- (7th his De- to the plaintiff transferred complaint, Craw- Britton 15 of the paragraph Facility. Central partment’s declares ford-El Coun- Spokane (in [During a transfer sen- 7th statement

Crawford-El’s Correctional Washington State] enraged” ty when tence) Jail “became Britton that Ballard, knowl- Britton’s with Ms. by Craw- duped been Officer thought she had she prisoners videotape of [] edge, the con- made help his ease. On ford-El does they while were Crawford-El] being [including angered at she was trary, that and chained handcuffed, leg-shackled, no constitutional tricked —Crawford-El several and Plaintiff waists. qualify- their about keeper provides his right trick — that Britton signifi- protested Ms. most others for Crawford-El’s context rights. privacy their videotaping that she violated said that Britton cant declarations: videotaping to her that she said and that Plaintiff by the article embarrassed was prisoners’ without done not be could for Crawford-El. life hard would make re- Britton Ms. authorization. written allegations brushes Judge Williams you don’t prisoner, “You’re sponded, Op. at 828. “self-serving.” Williams aside any rights.” inferences, conclu- and Self-serving opinions, Britton That was this show? may What does perceptible fact without basis sions insensitive summary generally withstand not be sufficient likely it Maybe. More prisoners? rights of pre- the mere under motion even judgment that believe that she did simply shows standard; is sum- but neither ponderance videotaped. In to be right not has a prisoner resolving a procedure mary judgment “a event, very probative either is not on the declaration in his fourth complaint, amended (nine later) question whether months she he would not have evidence that would clear- against retaliated Crawford-El exercising ly convincingly indicate to a reasonable rights. his first jury amendment prove. best, what he must At evi- his dence would establish a moment of paragraph complaint, 17 of his Craw- anger April Britton threatened to alleges ford-El that shortly publication after retaliate him for embarrassing by her (Decem- Washington of a second Post article making statements Washington to a Post 1988) quoted ber in which he was on the topic reporter, and that recently as December jailhouse lawyers, Captain Britton told one 1988 she resented his jailhouse lawyering. Manning (to Spokane County Jail points Crawford-El to no evidence that Brit- transferred) Crawford-El been anything ton did good to make on the 1986 that Crawford-El a “legal was troublemak- threat before she legal papers delivered his observes, er.” As Williams Britton’s to his in September brother-in-law nor describing “legal as a Crawford-El trouble- anything suggesting that he could discover maker” is hostility. scant evidence of In- evidence of such deed, hostility rabid toward him expression hostility as an viewed it is that it would constitute clear-and-convincing too support mild to the inference that she circumstantial evidence that grudge against bore a Britton re- Crawford-El nine taliating against gave treating months later when she Crawford-El legal papers him as she similarly treated other his brother-in-law. situated prisoners. Finally, alleges that Crawford-El on Au- gust 18, 1989, when he and prisoners other Under the clear-and-convincing evidence told Britton property posses- left in her standard, no jury reasonable could find on sion important included legal material, she these facts Britton acted with an uncon- spoke “smirked manner,” in a cavalier stitutional motive in 1989 and Crawford-El but “informed [Crawford-El] she under- has not offered a reason to believe that more stood his both personal need for his property evidence can be discovered. If on remand he legal and his material and that she would has nothing significant offer, more then personally to it [he] would get should be denied them.” alleges Crawford-El also upon the defendant’s motion judg- arriving at prison the federal in Petersburg, ment granted. should

Virginia prisoners several other D.C. in- formed him that Britton had asked their HENDERSON, KAREN LeCRAFT up families to pick property their or she Circuit Judge, concurring; away. would throw it Crawford-El offers no indicating evidence that Britton bore an un- high It is time that we scuttle the awkward constitutional animus toward of these direct/circumstantial distinction and prisoners; contrary, that she fully endorse the clear convincing stan- apparently property treated the of several dard plurality adopts in its stead. I am prisoners jibes in the same manner with her at a understand, however, loss to my why sworn declaration that she was motivated colleagues chose this Despite to do so. case what she understood to be policy the of the repeated opportunities below, replead both Federal Bureau Prisons. pro se and through appointed counsel, the sum, In if even by Crawford-El were plaintiff failed, dis- many as he has so times covery get every before,1 corroboration sworn allege demonstrating facts the See, e.g,, Columbia, 1. 1992) v. Best District No. (dismissing 92- damages claim resulting (D.C.Cir.1995) (summarily WL 66623 allegedly by guards' snakebite negli- caused affirming district court's dismissal of claim of gence); 88-0715, Barry, v. No. Crawford-El wrongful videotaping prisoners); Crawford-El (D.D.C.1989) (sua WL 9091 sponte dismissing Meese, (D.C.Cir.1990) v. (summarily No.88-8034 wrongful deprivation claims of privi- visitation affirming diet); challenge prison dismissal of leges prison classes); religious and of denial of v. Dep't District Columbia Cor- Crawford-El 88-2339, Shapiro, v. No. WL Crawford-El rections, (D.D.C. No. 1992 WL 118456 (clear- legal any right concerned about his material and other deprivation of not).2 short, ly property, prop- In his consti- established or that she was afraid the are frivolous and the district erty get tutional claims might lost were she to send it from well to dismiss the court would have done Property her office to Lorton Officer for sponte under the in complaint sua mailing plaintiff.” Appellant’s App. 24-25. forma statute, our pauperis either before or after Thus, appears simply Britton wanted to (au- 1915(d) § U.S.C. first remand. See 28 property plaintiff ensure that the reached the thorizing district court to dismiss promptly forma and intact. And it would have had “if action is pauperis suit satisfied plaintiff prevented not the himself its deliv- malicious”). Nevertheless, my frivolous or event, ery. aside, In intent what Britton colleagues yet again ignore choose providing plaintiff did had the effect of hopeless infirmity plaintiffs claims and of the exactly what he claims he wanted: maintaining support. insist on life On re- prompt property, access to his if not in the mand, long the district court will no doubt at (or precise manner he would have chosen lay plaintiff’s meritless claims to last Thus, taxpayer’s expense). the com- long ago. pulled plug rest. would plaint’s claim of unconstitutional retaliation is gist plaintiffs claim The of the retaliation “nonsensical on its face.” See Adams v. September In Britton is this: 1989defendant Rice, (4th Cir.1994) (so 40 F.3d charac- belongings plaintiff’s handed the over to his terizing complaint claiming inmate’s uncon- sending brother-in-law rather than them di- who, reprisal by prison stitutional officials home, rectly intending penal to his new requested “protective custody,” after he thereby upon plain- vengeance to wreak placed which, segregation, him in as the speaking press tiff for in 1986 and noted, gave protective custody him “the only allegation 1988. This is absurd. The requested approximate equivalent”). he or its suggests retaliatory that even motive is sense, assuming, against Even common earlier, years April that more than three handling plaintiff’s that Britton’s of the 21, 1986, day after the first article was property punish amounted to some sort of published, plaintiff of Britton accused the ment, he has no claim under U.S.C. tricking signing reporter’s her into visi- panel plaintiff’s § 1983. As the noted pass general threat that tor’s made she appeal, “general principle first there is everything would “do she had to to make it showing injury prerequisite some is a to a possible.”3 for him hard Whatever constitutional tort action.” v. probative alleged might force the threat oth- Crawford-El (D.C.Cir.1991) Britton, length of time erwise have undercut , 478, 504, (citing Butz v. 438 U.S. elapsed before the “diversion” of the Economou 2894, 2909-10, 57 L.Ed.2d 895 plaintiff’s property. plaintiff’s The own fac- (1978)) I). addition, (Crawford-El hand, allegations, tual on the other reveal an injury must beneficent, be of constitutional dimension: innocent, even for Brit- motive is, course, “There a de minimis level of handling plaintiff’s property. ton’s imposition with which the is not According complaint, Constitution to the fourth amended brother-in-law, Ingraham Wright, plaintiff’s concerned.” 430 U.S. who was em- 651, 674, 1401, 1414, Corrections, 51 L.Ed.2d 711 ployed Department plaintiff’s claim is “informed that he had been called The retaliation Britton, that she had him below the The al- Ms. told she de minimis level. (D.D.C.1988) (dismissing malpractice complaint allegations does contain several claim). which, true, may general indicate Britton's hostility growing impa- toward the 226, 233, Siegert Gilley, See complaints litigiousness. tience with his (1991) (find- might support plaintiff's While such evidence ing qualified immunity where "failed not his first now defunct claim of interference with allege to the violation of a constitutional court, right petition it does amendment right clearly that was established at the time of press for the not demonstrate intent retaliate actions, but also to establish the [the defendant's] interviews. all”). any right at violation of

846 Md., Inc. American Civil Liberties Union injuries to Britton are the leged attributable (4th 780, belongings to mailing County, three boxes of 999 F.2d 785 v. Wicomico costs of plaintiff finally Cir.1993) Sindermann, when the (citing Perry v. 408 Florida —incurred and, 2697). per- send 597, Thus, mother to allowed his 92 S.Ct. at them — receiving and the delay in them haps, a brief “is “test” for whether one exists whether temporarily replacing a consequent cost of by the defendants is adverse action taken items, the emotional distress as well as few constitutionally likely chill the exercise slight harm does flowing therefrom.4 Such protected speech.” v. Board McGill threshold. not cross the constitutional Cir.1979) (cit- (7th Educ., 774, Cf. 602 F.2d 780 Mental Buthy v. Commissioner Educ., of Office of ing Pickering v. Board 391 U.S. (2d Cir.1987) Health, F.2d 1050 818 (1968)); 20 L.Ed.2d 811 rule (holding that state mental institution Haines, DiMeglio v. 45 F.3d see also patients unit to remain requiring forensic (4th Cir.1995) (“Not every restriction is suffi- period is “a de min- awake for fixed 16-hour chill the Amend- cient to exercise First liberty” imposition individual imis rights, every nor is restriction action- ment claim); support process v. cannot due Walsh able, retaliatory.”); Telford, if Bart v. even Ass’n, High Athletic Louisiana Sch. (7th Cir.1982) (“It 677 F.2d would Cir.1980) (5th (rejecting stu- F.2d trivialize the First Amendment to hold rule,” challenge to “student transfer dent’s exercising right of free harassment making attending high student school outside always speech was actionable no matter how ineligible participate in his home district ordinary unlikely person firm- deter year, athletics one because interscholastic exercise.”). plaintiffs ness from that of “the de minimis nature of the burden imag- It claim flunks the test. is difficult placed plaintiffs’ free exercise of reli- on the (if any) ine that the minimal adverse effect redressable, all, gion”). if at It is therefore likely Britton’s actions was to chill or deter suit, not in through a local conversion federal (or any person) him reasonable from exercis- court under section 1983. See Crawford-El Thus, ing rights. his first amendment even (“At I, worst, might at 1318 the act 951 F.2d retaliatory, give if Britton’s conduct cannot conversion....”); law constitute a common rise to constitutional cause of action. See Davis, 693, 699-701, Paul v. (stat- Haines, DiMeglio v. 45 F.3d at 806-07 (1976) L.Ed.2d 405 retaliatory reassignment that claim of (state law tort does not constitutional de- investigator zoning geographic “to a subset make). privation very region formerly from which he ordinarily permissible It is true that an act zoning “likely assignments” had derived his may deprivation become a constitutional sufficiently implicate adverse to performed for the exercise of a retaliation Amendment”); Raymon the First Alvord See, right. e.g., Perry first amendment (5th Dist., Indep. Sch. F.2d 257 Cir. Sindermann, 1981) (holding March A Unit student’s (decision L.Ed.2d 570 to renew retaliatory lowering algebra claim of contract); professor’s untenured Cornell v. grade, resulting “insignificant decrease (8th Cir.1995) Woods, 1387-88 grade point average” her overall that did not (transfer prison); inmate to different Mer rank, “patently affect her class insub- (2d Coughlin, 879 F.2d 1037 iwether v. Cir. stantial”). 1989) (change assignment); in inmate’s work (5th sum, Cain, Cir.1989) plaintiffs meritless claims Jackson v. and, long have charges). should been since booted (filing disciplinary The threshold event, dignified should injury requirement nevertheless remains. A never been Nevertheless, precisely with en banc review. retaliation claim actionable “be is- retaliatory may joined cause actions tend to chill sues have been concur rights.” plurality’s disposition of constitutional individuals’ exercise of them. Any damages delay replacement resulted not Britton’s suffered costs if he had plaintiff’s belongings decision but from the gence. own intransi- allowed his mother to forward his promptly. It is even doubtful that he would have EDWARDS, Judge, put specific, with he or she can forward

HARRY T. Chief noncon- RANDOLPH, WALD, clusory allegations ROGERS and establishing whom factual concur, TATEL, concurring Judges, Circuit defendant’s unconstitutional intent “clear judgment in the to remand: convincing” similarly reject I evidence. Judge opinion go Silberman’s would once wrote: Justice Felix Frankfurter completely even further and rewrite the law only safeguard against crossing sure [T]he say that a motive-based claim can never adjudication legisla- the line between long survive a motion to dismiss so as the recognition necessity tion is an alert defendant’s can be seen behavior as consis- instinctive, it and as well as not to cross i.e., any motivation, possible legal tent with trained, reluctance to do so. regard without to whether it can be demon- Frankfurter, Felix Some on the Reflections presumed legal strated that the motivation is Statutes,

Reading L.Rev. Colum. actually prompted not what the actions that This admonition has been thor- are at issue. oughly my colleagues lost on who have any of this case. different view Without surprising opinions It is not these Congress directive from or mandate from the (along separate opinion Judge with the Court, Supreme my colleagues roughsh- run Ginsburg) path can find no safe to common od over the Federal Rules of Civil Procedure ground. opinions judgments These offer evidentiary and invent new standards that complete that are in defiance the Federal would make it all but certain that an entire Procedure, inventing Rules Civil evidentia- category of constitutional tort claims ry overlay- standards out of whole cloth and government or not merito- officials—whether ing procedures them onto the established rious —would never be able to survive a de- adjudicating in our lawsuits federal courts. qualified immunity. fendant’s assertion of principled Because there is no basis for these This result is both unfathomable and aston- judgments, opinions flounder in their ra- ishing. majority position.1 tionales and command no

Fortunately, majority telling a clear of the court There are some similarities in the agrees plaintiffs who file opinions, glar- for each suffers from’the same alleging governmental offi- tort claims opinions completely infirmities: cials unconstitutional intent are acted with any legislative unmoored to enactment or obligated heightened to meet form of Supreme precedent, they are con- pleading complaint. in their initial standard every trary to the law of other court of Rather, plaintiffs it is clear that need appeals in the nation. The net result pleading require- adhere to the basic notice judicial activism at its most extreme. Be- reject any heightened pleading rule that 8(c), ments of Federal Rule of Civil Procedure opinions of the court make it clear that we defense er than and need not require plaintiffs circumstantial, anticipate immunity. evidence. plead an affirmative Further, direct, rath- A. This Circuit’s ty established offered cause believe that this court has no authori- to amend the Federal Rules and to ^[*] I by my colleagues. ^[*] precedent, ^[*] Jurisprudence I reject ^{[*] [*]} positions ignore ^[*] However, raised this case is not a new issue strongly disagree Judge Supreme opin one. Ever since the Court’s Judge opinions Williams’s and Henderson’s 800, 102 that, Fitzgerald, ion Harlow v. suggesting the face of a defendant’s holding L.Ed.2d 396 qualified immunity, plaintiff claim for faces S.Ct. (even any discovery) generally can be dismissal without unless officials Although appear majority, opinion all members of the court of a as the consistent with the agree disposition grounds. on the narrowest Whether that this case must be remanded for fur- controls, Judge Ginsburg’s opinion proceedings, sharply it is ther the court is divided or not agrees sug- majority that the over the basis for remand. Williams clear that a of the court gests Judge Ginsburg’s opinion (pursuant judge trial must have discretion to consider the might get discovery) pro- appropriate under discov- which Crawford-El circumstances reasoning ery be allowed. vides a "common denominator” of the should requirement, that only they peared to invent a new damages civil

held liable direct, statutory plaintiffs plead only opposed clearly or con- established “violate circumstantial, of defendants’ un- rights,” id. at S.Ct. stitutional appeals courts have been forced motivation. Given that the Su- federal probative in preme of Harlow to cases has stated that the apply principles Court allege plaintiffs that defendants took value of circumstantial evidence “is intrinsi- evidence,” cally mo- against them with unconstitutional no different from testimonial action States, 121, 140, difficulty with these cases Holland v. United 348 U.S. tivation. 127, 137, (1954), that, instances, 99 L.Ed. 150 and in some 75 S.Ct. can in some cases be such evidence demonstrating might allege facts plaintiffs certain, satisfying persuasive than “more and lawfully, ap- have acted defendants evidence,” direct Michalic v. Cleveland they pend did so with an a claim Tankers, Inc., 325, 330, 364 U.S. 81 S.Ct. motive, and as a conse- unconstitutional 5 L.Ed.2d 20 the so-called direct- discovery, quence defendants into usher any evidence rule never has made sense. trial, hope of- perhaps with no success join my colleagues emphatically in therefore pre- on the merits. The result would be unjustified rejecting illogical an re- sought cisely pre- Harlow the burden my colleagues quirement. agree I also with vent. evidentiary applied standard to be (D.C.Cir.1984), Wilson, Hobson v. summary judgment on a motion for must be denied, 470 U.S. rt. ce 1843, applied consistently every subsequent (1985). 85 L.Ed.2d stage proceedings the trial before prevent In order to frivolous claims from Otherwise, court. as with the direct evi- stage pro in the reaching such advanced rule, higher plaintiffs dence would face a required ceedings, the Hobson court pre-trial burden to survive a motion than provide complaints “non- these motive-based they prevail in would face order to at trial. conelusory allegations of evidence of such Having wrong turn corrected our towards intent” in order to survive motion to dis rule, we not now direct-evidence should discovery. proceed miss and Id. Accord yet arbitrary reach out and invent another court, allegations on this “[t]he unjust standard. The correct decision extensive, they not be but will issue need principles this is to return to case the sound sufficiently precise put have to be defen set forth the court in Hobson. nature of the claim and dants on notice response.” prepare enable them to Id. B. The Hobson Standard Williams, by Judge proposed

Unlike the rule judge-made a new this test did not create Although this court has sometimes re standard, simply evidentiary but was a “firm ferred the rule enunciated Hobson as a application of the Federal Rules of Civil Pro see, standard,” “heightened pleading e.g., Sie cedure,” Supreme as called for Court (D.C.Cir.1990), gert Gilley, 895 F.2d Harlow, 35, 102 n. 457 U.S. at 819-20 S.Ct. grounds, on other 500 U.S. aff 'd (internal omitted). quotation at 2738-39 n. 35 (1991); Hobson, that, Moreover, in we noted “in Nixon, (D.C.Cir. Smith v. plaintiffs some circumstances are able to 1986), misleading appli that label is because paint very only speculative broad principles cation of the Hobson does not nec stage, pre-discovery brush at the and that essarily put what affect must overly rigid application ... of the rule could Indeed, complaint. Supreme claims;” lead to of meritorious we dismissal Toledo, made it clear Gomez v. judges therefore warned district court to act 1920, 1923-24, 64 L.Ed.2d cautiously only and dismiss those claims that (1980), that, as a matter substantive Hobson, support.” were of factual “devoid law, only allegations “two—and are re two— 737 F.2d at 30-31. quired in order to state a cause of action” cases, court, § subsequent pur- while under 42 A U.S.C. Hobson, porting ap- allege to remain faithful to must the defendant “has scenarios, right” deprived him of a federal and has these the trial court is able to color of state or territorial law.” plaintiffs “acted under evaluate the nature of the allega- Gomez, 640, 100 A 446 U.S. at 1923. concerning intent, pri- tions unconstitutional immunity qualified is an affirma defendant’s ruling or to on a defense motion for and, therefore, defense, “the burden of tive judgment.

pleading it with the defendant” under rests Thus, rather than refer to the Hobson test Rules, provide the the Federal heightened pleading requirement, “ plead any defendant must ‘matter constitut agree Easterbrook that we ing an avoidance or affirmative defense.’” “speak should instead of quan the minimum 8(c)). Thus, pursu (quoting Id. Fed.R.Civ.P. proof required tum of to defeat the initial Gomez, plaintiff obligation ant to has no to summary judgment.” motion for Elliott v. potential anticipate respond qualified or to a Thomas, (7th Cir.1991), 937 F.2d immunity complaint. initial defense the denied, cert. actually Once the defendant asserts the princi Under the defense, however, qualified immunity the Hobson, ples plaintiffs enunciated in can sur court must then determine whether the an initial summary judgment, vive motion for plaintiff can a sufficient factual to offer basis prior discovery, by to providing “nonconclu- support allegations of unconstitutional sory allegations of evidence” of the defen qualified im animus and therefore overcome dant’s unconstitutional intent. Rules, munity. Under the Federal there are rightly recognized Hobson also appropriate avail number mechanisms courts should applying be cautious in this plaintiff provide able which the can standard, lest meritorious claims be dis- support. example, additional factual For example, missed. For it will sometimes be 7(a),2 pursuant plaintiff may to Rule file a the ease that the relevant evidence is in the reply plaintiffs out sets evidence possession of the defendant and is therefore immunity relevant to and the material that plaintiff unavailable to the without further reasonably likely claims is to Thus, discovery. if the can show a pertinent lead additional to evidence. See reasonable likelihood that additional discov- Wood, (5th 1427, 1432-33 47 F.3d Schultea ery will uncover evidence to buttress the Cir.1995) (en banc). Alternatively, plain claim, 56(f) judge may the trial invoke Rule may complaint3 tiff file an amended or a deny summary judgment motion.6 statement,4 more or court can definite discretionary procedures part power discovery use These of the standard its over 26(b) apparatus provided by discovery under Rule to limit initial to a the Federal Rules to interrogatory concerning judges plaintiffs brief enable trial in civil suits differenti- ones, immunity.5 any evidence relevant ate meritorious claims from frivolous resources, 7(a) importance 2. Federal Rule of Civil Procedure states that of the issues at stake may reply litigation, importance pro- “the court order a to an answer or a in the and the of the third-party posed discovery resolving answer.” the issues.” 15(a) permits Rule Procedure 56(f) Federal of Civil expressly 6.Federal Rule of Civil Procedure party complaint “by to amend its time grants judge the trial broad discretion to order leave of court.” discovery prior ruling summary judgment on a motion, party opposing where the the motion 12(e) "present by permits cannot affidavit facts Federal Rule of Civil Procedure essential to pleading justify party's opposition.” Motion for More Definite Statement if a This court has vague ambiguous party explicitly “is so that a cannot held that the decision whether or not to reasonably required 56(f) responsive stay discovery pursuant to frame a to Rule is commit- pleading.” ted to the sound discretion of the Court. District Police, White v. Fraternal Order 909 F.2d Yet, (D.C.Cir.1990). evidentiary 26(b)(2)(iii) the new 5. Federal Rule of Civil Procedure proposed by Judge standard Williams would ef- permits the court to alter limits on discretion, fectively strip judge the trial of this judge if the trial determines that "the burden or denying any discovery plaintiffs they expense proposed discovery outweighs unless its benefit, likely taking provide convincing” pri- can “clear and evidence into account the needs of case, controversy, parties' discovery. the amount in or to suggested imposing heightened standard cases has never Supreme Court and the involving prison is somehow inade inmates because “it is far apparatus same that this immu particular prisoner it comes to more difficult for a to write a de quate when Indeed, in Harlow. nity expressed complaint person tailed than for a free to do concerns out, pointed Kennedy has the ob prisoners to the fact that have no as Justice so” due immunity artic jective power investigate gather standard their claims and on the fact that was based prior obtaining discovery. ulated in Harlow Bill summary judgment Corrections, at the Dep’t the standards man v. Indiana (7th for a defendant Cir.1995); “made it difficult 785, time Kit Kin 789-90 also regarding summary judgment a factu secure ports, Qualified Immunity in 198S Section subjective Wyatt intent.” question al Questions, Cases: The Unanswered 23 Ga. 171, 1827, Cole, 112 S.Ct. (1989) (The v. 504 U.S. argues author L.Rev. (1992) J., (Kennedy, 118 L.Ed.2d 504 that, underlying in a ease where the motive however, Now, “subsequent concurring). solely actions is a fact within the defendant’s summary-judgment law have clarifications to defendant, knowledge of the a court could by allowing sum problem, alleviated fairly grant defendant’s motion for sum mary against a non- judgment to be entered mary judgment giv before has been showing moving party fails to make a “who opportunity discovery to conduct en the existence of an sufficient to establish issue.). Thus, cases, regard with to such ease, party’s and on to that element essential Williams, proposed by Judge the standard party will bear the burden of purporting permit while some intent-based ” Corp. proof (quoting Id. Celotex at trial.’ claims, would, qualified immunity prac as a Catrett, 106 S.Ct. matter, virtually impossible tical make it (1986)). result, As a L.Ed.2d 265 these claims ever to survive a motion to adequate more than to dis Rule 56 is now Rudovsky, Qualified dismiss. See David appel claims without pose of unmeritorious Immunity Supreme Doctrine in the Court: taking upon themselves to in judges late Judicial Activism and the Restriction of evidentiary designed to vent standards new Rights, Constitutional 138 U. Pa. L.Rev. categories of particular cases. address (1989) (“Where must establish culpability part element as of the consti Proposed C. The Standard claim, tutional denial of on this opinion argues that Judge its Williams’s impossible prove issue would make it cer requiring “clear and convinc- Draconian rule cases.”). tain necessary ing” to vindicate the evidence is reading opinions by Judge In Williams immunity. right qualified substantive Henderson, Judge is left one with the agree am the view of the inclined to impression convincing” that a “clear and depict “it hard to Seventh Circuit that because, necessary standard is deemed with- substantive, ‘right not to be tried’” as it, plaintiffs in out some section 1983 cases Elliott, right. procedural, rather than actually Yet, might prevail on their claims. However, F.2d at even were I to as- overwhelmingly it is clear that the Court in immunity is a substantive sume that Harlow never for a moment intended to insu- justification right, no valid for re- there is liability late officials from in all satisfy a quiring plaintiffs to “clear and con- cases where official’s state of mind is a vincing” test in the cases here necessary element of the constitutional viola- Indeed, great irony in issue. there is fact, alleged. tion In in Harlow itself the judgment judges those offered who sub- plaintiff alleged that the defendants vio- opinion, Judge scribe to for the Williams’s rights lated his First Amendment dismiss- they propose new rule that would have ing testifying him in retaliation for before a potential plaintiffs devastating impact on who congressional then-judge committee. As already attempt- face substantial burdens out, Ginsburg pointed Ruth Bader ing pursue rights Recogniz- civil claims. burdens, these Posner has intended its formulation of [h]ad Chief argued perversity” qualified immunity “peculiar that there is a defense to foreclose circuit has seen fit to into the defendants’ state embrace such a rule. inquiry all mind, might have instructed the the Court Indeed, although nearly every other federal ... on entry judgment for defendants appeals the nation has addressed the claim without further the constitutional precise today, issue that we face not one has fact, returned the case the Court ado. adopted approaching a standard even open-ended court in an re- to the district positions by my colleagues offered who view mand, hardly disposition consistent with Instead, differently. this case all ten circuits mind a firm intent to delete the state of adopted have addressed the issue have every cal- inquiry from tort essentially formulations that are identical culus. one laid out Hobson and echoed in v. District Columbia Metro. Police Martin Kennedy’s Siegert Justice concurrence in (D.C.Cir.), 1425,1432 Dep’t, vacated 812 F.2d Gilley, 500 U.S. (D.C.Cir.), reinstated, part, J., (Kennedy, (D.C.Cir.1987). F.2d 1240 concurring) (“Upon quali the assertion of a Moreover, convincing” evi- if a “clear and immunity plaintiff put fied defense the must truly necessary to vin- standard were dence specific, nonconelusory forward factual alle right alleged substantive dicate defendants’ malice, gations which establish or face dism tried, my colleagues to be as some of issal.”).7 believe, why no other to one wonders seem facts, Although proved, courts have actu those will the some of the circuit overcome defense Thomas, ally adopted “heightened qualified immunity."); some form of so-called Elliott v. 937 pleading" requirement 338, test (7th Cir.1991) ("[T]he and have chosen to plaintiff F.2d 344-45 (an complaint stage plaintiff's the the claims at required] produce specific, nonconelusory [is to Gomez), approach that I believe runs counter to allegations necessary factual which establish the that, regardless important point the more is state, (internal quota mental or face dismissal.” test, they apply when the the courts have been denied, omitted)), tion and alteration cert. 502 quite articulating appropriate in consistent 1121, 1242, 112 S.Ct. Koren, evidentiary burden. See Blue v. 72 F.3d (1992); Edgington Dep’t v. Missouri Correc 1075, (2d Cir.1995) ("[T]he plaintiff must 1084 tions, 777, (8th (“Com Cir.1995) 52 F.3d 779 proffer particularized cir evidence direct or plaints seeking damages against governmental supporting the of an cumstantial facts ... claim subject heightened officials ... are to a standard improper motive in order to avoid pleading specificity put with sufficient to de judgment."); Upper Darby Township, Colburn v. claim."); fendants on notice of the nature of the 663, (3d Cir.1988) ("The poli dual 838 F.2d cy 666 Tunnell, 1382, (9th Branch v. 931 F.2d 1387 protecting concerns of state officials from Cir.1991) ("We requirement believe a that a deluge providing of frivolous claims and state plaintiff put nonconelusory allega must forward with notice of the claims as officials sufficient subjective tions of motivation ... satisfies Har responsive plead preparation serted to enable government should low's directive that officials impose ings have led us to on section 1983 lawsuits, be shielded from ‘insubstantial’ while at requirement pleading claims the additional preserving opportunity time same complaint contain a modicum of factual claims.”); plaintiffs pursue meritorious Walter specificity, identifying particular conduct of Morton, 1240, (10th Cir.1994) v. 33 F.3d 1243 alleged defendants that is to have harmed the motion, (“To summary judgment survive a (internal omitted)), quotation plaintiffs." nied, cert. de point specific showing must evidence 1065, 1338, 489 U.S. 109 S.Ct. 103 L.Ed.2d improperly the official’s actions were motivat (1989); Md., County, Gooden v. Howard ed."); City Birmingham, 963 F.2d Oladeindev. 960, (4th Cir.1992) (en banc) (“To F.2d 969-70 1481, (11th Cir.1992) ("In pleading a sec purposes qualified avoid evisceration of the necessary.”), action, factual detail is tion 1983 some immunity plaintiffs alleging ... unlawful intent denied, 113 S.Ct. t. 507 U.S. cer plead specific [must] ... facts in nonconeluso- First Circuit 123 L.Ed.2d dismiss.”); ry fashion to survive a motion to particular adopted of the has not formulation Wood, (5th Schultea v. F.3d Cir. standard, but instead has made it clear that in 1995) (en banc) ("The district court need not tent-based claims can be sufficient to overcome any discovery allow it finds that unless qualified immunity, Feliciano-Angulo see v. Riv supported precision claim with sufficient era-Cruz, Cir.1988), (1st and has specificity genuine to raise a issue as factual summary judgment in indicated that motions for illegality of defendant’s conduct at the qualified immunity cases will be handled under acts.”); alleged Veney Hogan, time of the case, just Cir.1995) (6th (Plaintiff the Federal Rules like F.3d spond must re Mass., 67 qualified immunity Alexis v. McDonald’s Restaurants to an assertion of Thus, (1st Cir.1995). no “specific, non-conclusory allegations 348-49 n. 7 of fact that jurisdiction operates under a stan- will enable the district court to determine that other federal rejected justifications for a explicitly no presented with

Further, have been we offered that, heightened standard that had been these formu- under indicate evidence defendants, and instead insisted the coun- lations, officials around government litiga- sole touchstone subjected Rules remain the to intolerable the Federal being try are sufficiency rights determining plain- intent-based civil tion burdens stated, judges are routine- additional tiffs case. As the Court that district suits or go only “by claims to forward.8 requirements imposed frivolous can be ly permitting Rules, Indeed, noting that neither the amending it worth the Federal process is defen- by judicial interpretation.” nor Id. at General Solicitor a “clear even advocated themselves dants at 1163. in their convincing” standard attempt justify a Finally, my colleagues’ this court.9 submissions convincing evidence standard clear and higher meet a requiring plaintiffs to rule A to New York Times Co. Sulli- reference immunity evidentiary standard van, 11 L.Ed.2d by the endorsed Su- has never been cases case, nothing In that vain. Court, (contrary suggestion

preme guarantee less the First Amendment’s than Harlow itself opinion) Williams’s stake, press was at and the of freedom of contem- Court gives no indication interest, en- concluded that this vital In- requirement. onerous plated such an justified a Rights, Bill of shrined completely deed, opinion Judge Williams’s See, id., e.g., evidentiary heightened burden. that, although the Court ignores fact (“[W]e consider this 84 S.Ct. at 721 suits that “insubstantial stated Harlow profound against background case officials should be high public against principle that national commitment trial,” the proceed to decision to allowed public uninhibit- debate on issues should be application of the Federal “firm on the relies ed, robust, wide-open-”). that and Given to achieve this Procedure” Rules of Civil right analogous constitutional there no is Harlow, at 819-20 n. 457 U.S. objective. lawsuits, public this protecting officials (internal quota- n. 35 at 2738-39 102 S.Ct. possibly qualify “cognate” as case cannot omitted). Thus, nothing in Harlow tions area of law. perform free-reign to courts gives appellate analysis toor select cost-benefit own their complete judicial prece- Despite the lack of evidentiary of thin air. standards out new judicial dent or evidence that an alternative remedy appropriate necessary, is either or Furthermore, Leather- the recent case of differently judges view this case who County Intelli- Tarrant Narcotics man Unit, attempted to have reached out and devise gence and Coordination devastating new of law rules many rights heightened, consequences in civil lawsuits. broadly repudiates the use of Thus, precisely moment we have policy-related judge-made standards to fulfill at finally dispensed our absurd anoma- judges and goals as those advanced such ’ rule, differently. Although lous direct-evidence some members case who view this against again once concoct an arbi- claims the court would addressed Leatherman evidentiary trary unfair standard significant it is the Court and municipalities, Although posi- Quinlan the brief of J. and approaching the Michael even harshness dard Miller, Jr., curiae, suggest judges Loye who view this case as amici does endorsed W. tions differently. convincing” possible standard "clear rule, to the direct evidence amici offer alternative legal precedent requiring supporting no empirical study contrary, at least one 8. To the standard, that, policy arguing instead litigation concludes that “the tort matter, appro- proposed standard would rights litigation explosion image of a civil govern- priate principle given "the venerable myth.” Ei- borders on Theodore overstated and Schwab, presumed good act in faith.” ment officials are Reality senherg Con- & Stewart Miller, Loye Quinlan W. Brief J. Michael Litigation, stitutional Tort Cornell L.Rev. Jr. as Curiae Amici blemaking up tied every ‘writ-writers’ who law of other the settled diverges from occasionally courts with successful lawsuits in the land. system” prison quoted effect, to that Britton told Application This Case Crawford-El D. prison official that Crawford-El another far from clear whether Although it is (Fourth “legal was a troublemaker.” merits prevail case can on the ¶¶ 16-17.) Complaint, Amended claims, complaint his is sufficient of his Britton, F.Supp. summary to dismiss or survive motions Crawford-El (D.D.C.1994). 802-03 Leonard Rollon judgment. Prison inmate alleges prison official Pa- Crawford-El allegations, on these and other Based unconstitutionally retaliated Britton tricia judge jury “might concluded that a trial rea- exercising First Amend- against him for his sonably ... that Britton infer diverted and by deliberately retaining rights ment property out of an withheld Crawford-El’s during misdelivering personal items then against a unconstitutional desire to retaliate ” simply Far from prison transfers. a series Thus, ‘legal troublemaker.’ Id. at 803. motiva- appending a claim of unconstitutional experienced member of our District Court claim, how- questionable an otherwise tion to that, found under the Federal Rules of Civil ever, complaint, as recounted Crawford-El’s Procedure, legitimate go is a case to there Court, specif- includes several by the District Yet, jury. evidentiary under the stan- allegations: ic factual proposed by my colleagues, dard several — alleges that Britton Crawford-El allegations would not be suffi- Crawford-El’s prisoners him worse than other treated proceed discovery. Nothing cient even that when he had been because she knew Supreme qualified immunity in the Court’s charge library at the Central result; indeed, of the law justifies jurisprudence such a Facility, helped prisoners he appear it would that Crawford-El’s com- Remedy Pro- prepare Administrative their plaint would survive a motion for appeals of grievance cedure forms or their every judgment adopted by under rules disciplinary decisions. Crawford-El appeals of in the nation. other court asserting legal rights and reputation “a for

knowing procedures for the administrative Conclusion so,” doing Britton hostile and that made any Supreme of deci- Given the lack Court (Fourth him. Amended Com- towards convincing” indicating that a “clear and sion ¶ 6.) plaint, at by judges can or should be invented standard — 20, 1986, Washington April The On the Federal Rules of Civil and overlaid onto front-page about published a article Post Procedure, judges proposed result jail overcrowding interviews with based on differently suggests an who view this case day, The next Britton chas- Crawford-El. authority. extraordinary judicial One use tricking her and for tised Crawford-El they thought have the outcome embarrassing her co-workers. her before judges who propose would be anathema to him to make life hard for She threatened restraint, judicial philosophy advocate a (Fourth way jail any she could. Amend- prudent particularly the more course is when ¶ 12.) Complaint, ed at application on a firm of the Federal to insist — Britton stated on another occasion Supreme until such a time as Rules prisoners like Crawford-El “don’t otherwise, or an commands us to do Court (Fourth any rights.” Amended Com- the Federal is made either to amendment ¶ 15.) plaint, at “[J]ust or to section 1983 itself. Rules — sup- building cathedral not masons should publication of a second After the architect, article, though both are reported plant even Washington Post art, judge creating a work of should suspicions “they were hand- inmates’ supplant politician or administrator District of picked for transfer [from seeking governance.” though all are sound Washington] be- Columbia to the State Williams, Deference, The Roots lawyers’ Stephen F. they ‘jailhouse cause were —trou- (1991); also, Yale L.J. Silberman, Chevron —The e.g., H. CASTING, Laurence ACME DIE A DIVISION Policy, Law & 58 Geo. Wash. Intersection INDUSTRIES, OF LOVEJOY (“decr[ying] the 821-22 INC., Petitioner, L.Rev. judicial extraordinary expansion power century,” observing half of this the latter NATIONAL LABOR RELATIONS concept distinguishes one most that the BOARD, Respondent. “judicial restraint” is those who advocate judicial policy making”). “avoidance of No. 95-1418. simple truth here is Bivens v. Six Appeals, United States Court of Agents Unknown Named Federal Bureau District of Circuit. Columbia Narcotics, (not progeny Argued May L.Ed.2d 619 its 1871), Rights Act

mention the Civil remain Aug. Decided the law the land and control the actions of And, Kennedy recently this court. as Justice out,

pointed must be courts cautious about statute,

“devising limitations to a remedial by Congress, which ‘on its face does

enacted ” provide Wyatt, immunities.’ (Kennedy, 112 S.Ct.

J., concurring) (quoting Malley Briggs, (1986)). I in-

L.Ed.2d 271 therefore find it

credible that some members of this court rules that

seek to create new would effective-

ly impossible Bivens-type all render civil

rights turn on the actions intent of Supreme officials. Until question finally resolves the once and all, appears might that this circuit sit among appeal

alone all the federal courts of approach its to this issue. legiti-

Citizens of the United States who

mately legal system repre- use the to render

sentatives of their accountable

for unconstitutional action should not find the capital door in our nation’s

courthouse hope

slammed shut. that will not be the

consequence today’s decision.

Case Details

Case Name: Leonard Rollon Crawford-El v. Patricia Britton and the District of Columbia

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Aug 27, 1996

Citation: 93 F.3d 813

Docket Number: 94-7203

Court Abbreviation: D.C. Cir.