LYNN JAY FERRIN, PETITIONER V. HERMAN DI MARTINI No. 90-660 In The Supreme Court Of The United States October Term, 1990 The Solicitor General, on behalf of Lynn Jay Ferrin, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Rule involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-15a) is reported at 889 F.2d 922. The amended opinion and order of the court of appeals on the denial of rehearing (App., infra, 16a-19a) is reported at 906 F.2d 465. The opinion of the district court (App., infra, 20a-21a) is unreported. JURISDICTION The judgment of the court of appeals was entered on November 21, 1989. A rehearing petition was denied on June 25, 1990. App., infra, 19a. On September 13, 1990, Justice O'Connor extended the time for filing a certiorari petition to and including October 23, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). RULE INVOLVED Rule 56, Fed. R. Civ. P., provides in part as follows: (c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of the hearing may serve opposing affidavits. The judgment sought should be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. * * * * * (e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. (f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. QUESTIONS PRESENTED In this Bivens action against a public official, the court of appeals affirmed the district court's denial of summary judgment sought by the defendant on the ground of qualified immunity from liability in damages. The questions presented are: 1. Whether the district court's denial of summary judgment on qualified immunity grounds is an immediately appealable collateral order when the defendant is also named in the complaint in a prayer for injunctive relief. 2. Whether, in determining what proof is required in order to resist a grant of summary judgment in such a case, the court of appeals erred in relaxing, in favor of the plaintiff, the requirements of Fed. R. Civ. P. 56. STATEMENT 1. Petitioner is a Special Agent of the Federal Bureau of Investigation. Beginning in 1980, petitioner was assigned to an investigation of alleged criminal activities at various Las Vegas, Nevada, gambling casinos, one of which was the Stardust Hotel and Casino. During the investigation, respondent testified before a federal grand jury and denied knowledge of any illegal activities at the Stardust. In January 1984, the Stardust and five employees were indicted for "skimming" money from the hotel and casino, i.e., for underreporting or not reporting cash receipts in order to evade tax liability. /1/ The dispute between the parties stems from two subsequent events that occurred in November 1984. At that time, respondent was employed as a card dealer at the Sands Hotel and Casino. On about November 19, petitioner contacted respondent during his working hours at the Sands. Petitioner asked respondent for his assistance in the upcoming Stardust trial. After respondent denied having any knowledge of illegal activities at the Stardust, petitioner said that, given respondent's association and friendship with the individual defendants in the Stardust case, he believed that respondent could assist the government if respondent wanted to do so. Respondent again denied having any knowledge of illegal activities at the Stardust. After respondent uttered his second denial, petitioner ended the interview. /2/ In his complaint in this action, respondent alleges that during this interview, petitioner attempted to coerce him into committing perjury in the Stardust case. /3/ The second incident occurred not long thereafter. The parties agree that petitioner spoke with Doug Ducharme, the Sands casino manager, and that the Sands fired respondent. In his complaint, respondent alleged, on information and belief, that petitioner "directed and demanded" that the Sands fire respondent because of his association with the Stardust and its employees and his "refusal to 'assist'" the government in the Stardust case. /4/ 2. Respondent thereafter brought this Bivens action /5/ against petitioner. Respondent alleged that petitioner had attempted to coerce him into committing perjury in the Stardust case, and that petitioner had coerced the Sands into dismissing him, in violation of, inter alia, the Fifth Amendment. Complaint paras. 6-16 (Jan. 2, 1985). Respondent also filed three broad discovery requests: a request for admissions; a set of interrogatories; and a request for the production of all documents in the FBI's investigative file relating to respondent, seven other specified persons (including the five individual defendants named in the Stardust indictment), and the investigation at the Stardust. During the ensuing two years, the parties filed various pretrial motions before the case approached the summary judgment stage. /6/ Respondent ultimately filed a second amended complaint /7/ and noticed petitioner's deposition. Petitioner moved for summary judgment on qualified immunity grounds, and filed his own affidavit in support of the motion. In this affidavit, petitioner denied making any attempt to coerce respondent into committing perjury in the Stardust case, denied asking Ducharme or anyone else at the Sands (or the Stardust) to fire respondent, and denied threatening anyone not to hire respondent. /8/ Petitioner also sought a protective order on the ground that discovery should not be permitted until the district court had resolved the qualified immunity question. Motion for Protective Order 3 (May 27, 1987) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Respondent opposed both motions. In an affidavit filed with his opposition to the summary judgment motion, /9/ respondent repeated the claims of his complaint. As the court of appeals acknowledged, however, the affidavit contained no support for the allegations of the complaint that petitioner had attempted to coerce respondent into committing perjury, and contained no admissible evidence to show that petitioner had coerced respondent's employer into firing him. App., infra, 11a. In opposing the motion for a protective order, respondent relied solely on the "Points and Authorities attached to (his) Opposition" to petitioner's summary judgment motion, in which respondent argued against qualified immunity as a matter of law. Opposition to Defendant's Motion for Protective Order (July 6, 1987). Respondent made no argument that he could not present by affidavit facts essential to justify his opposition, or that he should be permitted to engage in discovery in order to defend against the summary judgment motion. In particular, he filed no affidavit to that effect under Rule 56(f) of the Federal Rules of Civil Procedure. The district court entered a protective order staying discovery, Di Martini v. Ferrin, No CV-S-85-001, LDG (July 30, 1987), and denied petitioner's motion for summary judgment, App., infra, 20a-21a. The court reasoned that the right to be free from government misconduct was "clearly established" at the time of petitioner's actions in 1984 because Davis v. Passman, 442 U.S. 228 (1979), had upheld a Bivens action for Fifth Amendment violations. App., infra, 21a. 3. Petitioner appealed, and the court of appeals affirmed, albeit on different grounds. App., infra, 1a-15a. At the outset, the court held that an order denying a claim of qualified immunity from damages liability is an immediately appealable collateral order even if the defendant is also named in a prayer for injunctive relief. App., infra, 4a-7a. The Ninth Circuit rejected the Third Circuit's contrary holding in Prisco v. United States, 851 F.2d 93 (1988), cert. denied, 109 S. Ct. 2428 (1989), that such orders are not immediately appealable, and followed the decisions handed down by seven other circuits. App., infra, 4a. Before addressing the merits of the qualified immunity issue, the court discussed "the role of affidavits in qualified immunity cases." App., infra, 9a-10a. The Ninth Circuit described that role as follows, id. at 10a: Because the Supreme Court has barred discovery until after the trial judge can answer the legal question whether the alleged acts constitute a constitutional violation that was clearly established at the time, a plaintiff may often have no way to defend against a summary judgment motion other than through his own affidavit. In order to survive the motion, the plaintiff must set forth facts sufficient to raise the constitutional question. However, he cannot depose the percipient witnesses who could testify to those facts, and he may not himself have directly observed all of the critical events. This dilemma requires some relaxation of the ordinary rules of admissibility in the case of affidavits used to oppose qualified immunity motions. For example, since plaintiffs cannot compel testimony from others when opposing such motions, they must be allowed to rely on what those witnesses have told them, i.e. hearsay. Similarly, plaintiffs may not be able to obtain documents in the possession of others, and may be compelled, instead, to set forth their understanding of the contents of those documents in their own affidavits. Thus, the best evidence rule cannot always be strictly enforced. Also, a greater tolerance of speculation and inference must be afforded. At a later stage in the proceedings plaintiff will, of course, be required to establish the facts by more traditional means. However, where the issue to be resolved on summary judgment is solely whether the law was clearly established at a particular time, and compelled testimony regarding the operative facts is precluded, a plaintiff must be permitted to set forth his understanding of the facts whether or not his knowledge is first-hand or meets all the ordinary rules of evidence. Using that approach in this case, the court of appeals held that the affidavits created a genuine issue of material fact on the questions whether petitioner "intimidated" respondent into cooperating with petitioner and whether petitioner was responsible for respondent's dismissal. App., infra, 11a. The court acknowledged that respondent's affidavit did not, and could not, attest to any coercion of his employer by petitioner, since respondent had no personal knowledge of any such coercion. But referring to respondent's report of his conversation with his supervisor -- a report that could not constitute evidence of the truth of the supervisor's statements -- the court said that "(a) rational trier of fact could infer from (respondent's) alleged conversation with his employer that (petitioner) in fact demanded (respondent's) discharge." Ibid. The court also held that, although respondent's affidavit "contained no support" for his allegation that petitioner attempted to coerce respondent into committing perjury in the Stardust case, respondent's affidavit did allege facts from which he "apparently inferred an intent to get him to testify 'or else.'" Ibid. The court excused any shortcomings in that affidavit on the ground that the district court had stayed all discovery pending disposition of the qualified immunity motion. Id. at 11a n.1. /10/ On the merits of the qualified immunity issue, the court held that respondent had stated a violation of a clearly established due process right to be free from arbitrary government interference in private employment. App., infra, 12a-15a. 4. Petitioner filed a petition for rehearing with a suggestion of rehearing en banc. The court issued an order revising its discussion of the merits of the qualified immunity issue, /11/ but did not modify its discussion of the role of affidavits in qualified immunity cases. App., infra, 17a-19a. REASONS FOR GRANTING THE PETITION In Butz v. Economou, 438 U.S. 478 (1978), and Harlow v. Fitzgerald, supra, this Court held that Executive Branch officials are generally entitled only to qualified, not absolute, immunity, when they are sued in Bivens actions for constitutional torts. At the same time, this Court assumed that federal officials would not needlessly suffer the burdens of litigation since the lower federal courts would be able to dispose of insubstantial cases by strictly applying the Federal Rules of Civil Procedure, including the rules of summary judgment. In this case, however, the Ninth Circuit has upset that balance. The Ninth Circuit held that "some relaxation" of the rules governing summary judgment is necessary in such cases precisely because they are Bivens action. In so doing, that court endorsed an entirely novel approach to the adjudication of summary judgment motions involving qualified immunity claims and unjustifiably exposed federal officials to the risks and burden of litigation. Because the decision below threatens to nullify key protections afforded public officials by that doctrine, and because the Ninth Circuit's decision is inconsistent with decisions of this Court and other courts of appeals, review by this Court is warranted. 1. This case also involves an important threshold question of appellate jurisdiction as to which there is a conflict among the circuits. In our view, the Ninth Circuit correctly held that the district court's order is immediately appealable. a. Mitchell v. Forsyth, 472 U.S. 511 (1985), held that an order denying a government official's claim of qualified immunity from a damages suit is an immediately appealable collateral order. Forsyth reasoned that the qualified immunity recognized by Harlow v. Fitzgerald, supra, is not merely a defense to liability but is an "entitlement" to "an immunity from suit" and thus "is effectively lost if a case is erroneously permitted to go to trial." 472 U.S. at 526. Forsyth also noted that "it follows from the recognition that qualified immunity is in part an entitlement not to be forced to litigate the consequences of official conduct that a claim of immunity is conceptually distinct from the merits of the plaintiff's claim that his rights have been violated." Id. at 527-528. Erroneously forcing a government official to stand trial, or even to undergo pretrial discovery, Forsyth stressed, would defeat the important policies served by qualified immunity, i.e., avoiding the "distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service." Id. at 526 (quoting Harlow, 457 U.S. at 816). Forsyth left open the question whether a public official can immediately appeal an order denying a claim of qualified immunity when the plaintiff has sought injunctive relief as well as damages. 472 U.S. at 519 n.5. Since then, nine courts of appeals, including the one below, have considered that question, and eight have expressly held that such an order is immediately appealable even though the case will go forward on the plaintiff's request for injunctive relief regardless of the resolution of the immunity issue. De Abadia v. Izquierdo Mora, 792 F.2d 1187, 1189-1190 (1st Cir. 1986); Kennedy v. City of Cleveland, 797 F.2d 297, 305-306 (6th Cir. 1986), cert. denied, 479 U.S. 1103 (1987); Scott v. Lacy, 811 F.2d 1153, 1153-1154 (7th Cir. 1987); Drake v. Scott, 812 F.2d 395, 398, supplemented on rehearing, 823 F.2d 239 (8th Cir.), cert. denied, 484 U.S. 965 (1987); DeVargas v. Mason & Hanger-Silas Mason Co., 844 F.2d 714, 717-718 (10th Cir. 1988); Young v. Lynch, 846 F.2d 960, 961-963 (4th Cir. 1988); /12/ Marx v. Gumbinner, 855 F.2d 783, 786-788 (11th Cir. 1988). /13/ In addition, the Ninth Circuit in this case, App., infra, 4a-7a, and the Eleventh Circuit in Marx v. Gumbinner, 855 F.2d at 787-788, expressly rejected the holding and reasoning of the Third Circuit in Prisco v. United States, supra. /14/ Only the Third Circuit has held that a plaintiff's request for injunctive relief deprives an order denying an official's claim of qualified immunity of the finality necessary to permit an immediate appeal. b. The Third Circuit's holding in Prisco is incorrect. Prisco held that an order of this type is not immediately appealable under Forsyth because the case would go forward on the plaintiff's prayer for injunctive relief even if the defendant public official were entitled to qualified immunity from damages liability. But a government official against whom injunctive relief has been sought is essentially a defendant in name only, a surrogate for the agency that he works for or directs. "As a practical matter, a public official who is a defendant in a suit seeking an injunction is not 'on trial' at all." Scott, 811 F.2d at 1153. To the extent the injunction is sought against the officer in his official capacity, "(i)f he leaves office during the interim, he leaves the case behind and his successor becomes the party." Id. at 1154. See Will v. Michigan Dep't of State Police, 109 S. Ct. 2304, 2311 (1989); Kentucky v. Graham, 473 U.S. 159, 165-166 (1985); Brandon v. Holt, 469 U.S. 464, 470-471 (1985). E.g., Fed. R. Civ. P. 25(d)(1); Fed. R. App. P. 43(c)(1); Sup. Ct. R. 35.3. If an injunction is granted against a public official, he "will simply be ordered by the court to do something, at the state's expense," or to refrain from doing something, whereas an unsuccessful defendant in a damage suit "will be liable in his personal capacity for a monetary payment of some amount." Marx, 855 F.2d at 787-788. "(E)ven if he ultimately prevails in an appeal from final judgment, his personal assets will be subject to attachment pending the appeal unless he posts, at his own expense, a supersedeas bond." Id. at 788. "(T)he threat of exposure" to a damages action, as contrasted with a suit for injunctive relief, "is much more likely to have the effect of dampening the ardor with which the individual carries out his official functions." Ibid. And denying interlocutory appellate review simply because the plaintiff has sought equitable relief "might invite plaintiffs to include spurious injunctive claims to avoid interlocutory appeal of the immunity question, and thus force the defendant to face the tribulations of a trial from which he may be properly immune." De Abadia, 792 F.2d at 1190. Accord Young, 846 F.2d at 962; DeVargas, 844 F.2d at 717-718; Scott, 811 F.2d at 1154 ("The rule concerning jurisdiction affects the number of requests for injunctions; we cannot simply assume that the way the plaintiff frames his claims is exogenous."); Kennedy, 797 F.2d at 306. For all of these reasons, "the entitlement to be free from suit on a claim for money damages is, in the context of a suit against a government official, conceptually distinct from an entitlement to be free from suit on a claim for injunctive relief." Marx, 855 F.2d at 788. And once that principle is accepted -- as this Court did in Forsyth, 472 U.S. at 527-528 -- "the rationale underlying the Third Circuit's rule breaks down," while "the policy reasons for according the government official immunity to suit for money damages -- and hence the reasons for allowing an immediate appeal if that immunity is denied -- remain." Marx, 855 F.2d at 788. Accordingly, the rule adopted by the Ninth Circuit, unlike the one adopted by the Third Circuit, will promote the important public policies that this Court strove to protect in Forsyth. /15/ 2. The question that the Ninth Circuit decided adversely to petitioner warrants review by this Court. The Ninth Circuit believed that plaintiffs in some Bivens cases could not survive a motion for summary judgment on qualified immunity grounds without first undertaking discovery, yet also believed that this Court had barred all discovery until after the qualified immunity issue has been resolved. The only way to resolve this "dilemma," the Ninth Circuit held, was to relax "the ordinary rules of admissibility in the case of affidavits used to oppose qualified immunity motions." App., infra, 10a. In so ruling, however, the Ninth Circuit erroneously decided a question of considerable public importance regarding the proper litigation of qualified immunity claims in district court. There is no question in this case that under the rules normally applicable to summary judgment motions, defendant's motion should have been granted. Thus, the Ninth Circuit's "relax(ed)" approach to the use of affidavits to oppose summary judgment motions on qualified immunity grounds substantially lightens the burden on a plaintiff to defeat such motions. And it does so despite this Court's admonition that the Federal Rules of Civil Procedure should be applied in a manner that helps vindicate the strong policy interests underlying the qualified immunity doctrine. a. Rule 56 of the Federal Rules of Civil Procedure establishes the standard for a district court to use in resolving a motion for summary judgment. Rule 56(c) states that a party is entitled to summary judgment in his favor "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(e) provides that a party against whom summary judgment has been sought "may not rest upon the mere allegations or denials of the adverse party's pleadings," and "by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." And if affidavits are relied upon, they "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Ibid. Thus, a party against whom summary judgment has been sought "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Id. at 587; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289 (1968). In sum, as this Court has explained, "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When no such showing is made, "(t)he moving party is 'entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id. at 323. See also Lujan v. National Wildlife Fed'n, 110 S. Ct. 3177, 3186 (1990). This Court's decision last Term in Lujan v. National Wildlife Fed'n, supra, is particularly instructive on this issue since the Court explained how Rule 56 should be applied when a party relies on affidavits to establish an essential element of its case. In Lujan, the plaintiffs claimed that they had standing to challenge federal land management decisions because they used land "in the vicinity" of the affected region, which encompassed thousands of acres. 110 S. Ct. at 3187. The court of appeals held that the plaintiffs' affidavits were sufficient to establish an injury-in-fact because a court must "assume" that the affiants in fact used the affected acres, or else their allegations would be "meaningless, or perjurious." Id. at 3188. This Court squarely rejected that approach to applying Rule 56(e). "The object of this provision," the Court stated, "is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit. * * * Rather, the purpose of Rule 56 is to enable a party who believes there is no genuine dispute as to a specific fact essential to the other side's case to demand at least one sworn averment of that fact before the lengthy process of litigation continues." 110 S. Ct. at 3188-3189. For that reason, the Court made clear that "(i)t will not do to 'presume' the missing facts because without them the affidavits would not establish the injury that they generally allege," because such a presumption would "convert() the operation of Rule 56 to a circular promenade" in which a court assumes what the Rule requires a party to prove simply on the ground that the alternative required by the Rule would be summary judgment. Id. at 3189. The Ninth Circuit committed essentially the same mistake as the D.C. Circuit in Lujan. The Ninth Circuit frankly recognized that respondent's affidavit did not expressly support his claims that petitioner tried to coerce him into committing perjury /16/ and that petitioner coerced Ducharme into dismissing respondent. /17/ Indeed, in both respects, the affidavit fell far short of the explicit requirements of Rule 56(e). Yet in both instances, the Ninth Circuit excused otherwise fatal deficiencies by tolerating the type of "speculation and inference" that the Court rejected in Lujan. That this case is a Bivens action affords more, not less, reason strictly to enforce the requirements of Rule 56. The Court has explained that a Bivens action "can be terminated on a properly supported motion for summary judgment based on the defense of immunity," Butz v. Economou, 438 U.S. 478, 508 (1978), and that "firm application of the Federal Rules of Civil Procedure will ensure that federal officials are not harassed by frivolous lawsuits," ibid. See also Harlow, 457 U.S. at 819-820 n.35. The Ninth Circuit's novel approach to Rule 56 is at odds with this Court's precedents. The Ninth Circuit justified its new approach on the ground that the district court -- in accordance with this Court's directives in cases involving a claim of qualified immunity -- had stayed discovery until that claim was resolved. App., infra, 11a; see id. at 10a & n.1. But the Ninth Circuit went wrong in both respects. It is true that discovery should generally and ordinarily be enjoined until after the qualified immunity question is resolved, because that immunity is in part an entitlement to avoid litigation. Anderson v. Creighton, 483 U.S. 635, 646-647 n.6 (1987); Mitchell v. Forsyth, 472 U.S. at 527. But when a claim of qualified immunity is presented in a summary judgment motion and the parties offer different versions of the defendant's allegedly unlawful conduct, some discovery "tailored specifically" to the immunity issue "may be necessary" in order to resolve that question. Anderson, 483 U.S. at 646-647 n.6. Permission to engage in such limited discovery may be sought under Rule 56(f), which states that a party who cannot present "facts essential to justify (its) opposition" must file an "affidavit" giving the "reasons" for that inability. The court then "may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just." In this case, respondent never filed such an affidavit in opposition either to the summary judgment motion or to the motion for a protective order that was pending at the same time; instead, he relied entirely on his legal argument in his opposition to petitioner's summary judgment motion. Under these circumstances, "a greater tolerance of speculation and inference," App., infra, 10a, is hardly faithful to this Court's insistence on a "firm application of the Federal Rules of Civil Procedure" in Bivens cases. Butz v. Economou, 438 U.S. at 508. Accordingly, the Ninth Circuit erred, first, in assuming that in this case, as in Bivens cases generally, discovery is always and entirely barred until after the district court has answered the qualified immunity question on summary judgment, and, second, in relaxing the rules of summary judgment in a plaintiff's favor. b. The court of appeals' approach to the role of affidavits in qualified immunity cases is inconsistent with the approach taken by other circuits on this question. For example, the First Circuit has made clear that a plaintiff must present specific facts in support of the allegations in his complaint in order to defeat a properly supported claim of qualified immunity on summary judgment. In Rogers v. Fair, 902 F.2d 140 (1990), the First Circuit held that government officials were entitled to summary judgment because of the dearth of facts supporting an alleged conspiracy to deny the plaintiff a prison furlough due to the religion of his sponsors. Id. at 143. The court held that the combination of (a) a prejudicial statement allegedly made by one of the defendants and (b) plaintiff's conjecture was not sufficient, without more, to defeat the defendants' entitlement to qualified immunity. Ibid. The evidence necessary to resist summary judgment, the court emphasized, must be more than merely "colorable"; it must be "significantly probative." Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-250). The Tenth Circuit has expressly held that a plaintiff opposing summary judgment must present specific, probative facts supporting his constitutional claim in order to defeat a contrary claim of qualified immunity. Lewis v. City of Fort Collins, 903 F.2d 752, 758-759 (1990). A plaintiff who is unable to make this required showing can resist summary judgment only by filing an affidavit under Fed. R. Civ. P. 56(f) specifying why discovery is necessary. As the Tenth Circuit explained, "in response to a summary judgment motion based on qualified immunity, a plaintiff's 56(f) affidavit must demonstrate 'how discovery will enable (him) to rebut a defendant's showing of objective reasonableness' or, stated alternatively, demonstrate a 'connection between the information he would seek in discovery and the validity of the (defendant's) qualified immunity assertion.'" 903 F.2d at 758 (quoting Jones v. City and County of Denver, 854 F.2d 1206, 1211 (10th Cir. 1988)) (emphasis added in Lewis). A general, unparticularized declaration of the need for discovery does not satisfy these requirements. Id. at 758-759; id. at 759 ("(Plaintiff) has not explained how any specific documents or depositions will aid in rebutting defendants' showing of objective reasonableness. Rule 56(f) is not a license for a fishing expedition, especially when summary judgment is urged based on a claim of qualified immunity."). /18/ c. The question of how the district courts should adjudicate summary judgment motions in Bivens cases is one that arises often and is clearly of sufficient public importance to warrant review by this Court. This Court's decision in Anderson requires courts to focus the qualified immunity analysis on the particular conduct that a public official is alleged to have committed. That focus has important consequences for the adjudication of qualified immunity claims, for two reasons. Oftentimes the parties will disagree over what the defendant is alleged to have done, yet it is common for public officials to seek a protective order from the district court barring discovery until after the qualified immunity issue is resolved. In the wake of the Ninth Circuit's decision, numerous public officials who are entitled to immunity from damages liability -- an immunity that should preclude being subjected to costly pretrial and trial procedures -- will instead be forced to stand trial because competent affidavits and other documentation will not be required in order to defeat a motion for summary judgment. This case vividly illustrates those deleterious effects. Federal law enforcement officials must often contact private employers in order to seek assistance in an investigation. Yet, any time a party is demoted or dismissed after such a contact, there is a risk that the law enforcement officer involved will be forced to undergo the expense and burdens of extensive litigation in a Bivens action. Under the Ninth Circuit's newly minted approach, a plaintiff can merely allege that his employer was coerced into discharging him; the courts must (erroneously) assume that the plaintiff has no access to the critical evidence of what transpired between his former employer and the officer; and the courts are free to engage in "speculation and inference" about what depositions of witnesses and inaccessible documents might disclose. In sum, mere contact between a government official and a private employer, if coupled with an adverse action taken against the employee by the employer, may be sufficient to establish a triable issue of the invasion of clearly established due process rights. This is precisely the type of chill on legitimate government action that the qualified immunity doctrine was designed to prevent. Finally, this Court recently granted certiorari in Siegert v. Gilley, No. 90-96 (Oct. 15, 1990), which raises a question regarding the degree of specificity required of the plaintiff in a Bivens action. The petitioner in Siegert maintains that the so-called "heightened pleading standard" required by some courts of appeals is inconsistent with the Federal Rules of Civil Procedure and this Court's decisions, and that the court of appeals erred in ordering his complaint dismissed without any opportunity for discovery. The question presented by this case is closely related to that in Siegert. The Siegert case involves a challenge to the "heightened pleading standard," whereas this case involves the adequacy under the summary judgment rule of the plaintiff's proof in support of his allegations. But this case and Siegert both raise oft-recurring questions of considerable practical importance to the disposition of Bivens cases. We therefore urge this Court to grant the petition in this case and to set the case for argument in tandem with Siegert so that the Court can fully address the practical problems raised by the litigation of qualified immunity claims. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General DAVID L. SHAPIRO Deputy Solicitor General PAUL J. LARKIN, JR. Assistant to the Solicitor General BARBARA L. HERWIG DEBORAH RUTH KANT Attorneys OCTOBER 1990 /1/ See Second Amended Compl. paras. 2, 6-8 (Apr. 7, 1987). /2/ See Second Amended Compl. para. 9. /3/ See Second Amended Compl. paras. 10, 15. /4/ Second Amended Compl. para. 10. /5/ See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). /6/ There was a fair degree of maneuvering, which can be summarized as follows: (1) Petitioner moved to dismiss the complaint and sought a protective order. In connection with the motion for a protective order, petitioner argued that discovery was unnecessary until the pending motion to dismiss had been resolved. Motion for a Protective Order 2 (May 2, 1985). Relying on a local court rule, the magistrate granted petitioner's request on the ground that respondent had not opposed it. Di Martini v. Ferrin, No. CV LV 85-001, LDG (May 28, 1985) (Magistrate Pro; minute entry). Respondent then moved in the district court to have the protective order vacated. He argued that he had not opposed petitioner's earlier request for a protective order because he had entered into a stipulation with petitioner to extend the time to comply with his discovery request. Motion to Set Aside Protective Order 2 (June 12, 1985). See C.A. R.E. 26 (docket sheet noting stipulations). Respondent agreed that discovery could be stayed pending resolution of petitioner's motion to dismiss, but also argued that "(i)t is important for (respondent), at this time, to pursue the discovery with respect to the basis upon which (respondent's) former employer, the Sands Hotel & Casino, Las Vegas, Nevada, terminated him from his employment." Motion to Set Aside Protective Order 2. The district court did not then act on respondent's motion to vacate the protective order. Instead, the district court dismissed the complaint. The court held that respondent had not served the Attorney General and also that petitioner was entitled to absolute immunity from damages liability on respondent's state law tort claims. Di Martini v. Ferrin, No. CV LV 85-001, LDG (Aug. 15, 1985), slip op. 1-2. (2) Respondent thereafter sought leave to file an amended complaint. The district court granted respondent's motion, C.A. R.E. 27 (docket sheet), and petitioner moved to dismiss the amended complaint. Before the district court ruled on petitioner's motion, respondent again moved in district court to vacate the protective order. Motion to Set Aside Protective Order (Oct. 9, 1986). Respondent argued (id. at 2-3 (citation omitted)): Unlike the first Motion to Dismiss(,) which was based on insufficiency of process and immunity from state law causes of action, the pending Motion to Dismiss attacks the Plaintiff's alleged failure to state specific facts to support his claims of deprivation of constitutional rights. Thus, discovery directly bears on the determination of this Motion. Once Plaintiff's discovery requests are complied with by the Defendant, Plaintiff will have in his possession the relevant facts necessary to plead his constitutional deprivations with sufficient specificity should the Court decide that Plaintiff's complaint is not properly supported by factual data. The district court later denied petitioner's renewed motion to dismiss, ruling that the facts alleged in petitioner's amended complaint, if proved, could establish a violation of respondent's due process rights. Di Martini v. Ferrin, No. CV-S-85-001, LDG (Oct. 22, 1986). The court also vacated the protective order due to petitioner's failure to oppose respondent's most recent motion to set aside the protective order. Di Martini v. Ferrin, No. CV-S-85-001-LDG (Mar. 26, 1987); C.A. R.E. 28 (docket sheet). /7/ The factual allegations in the Second Amended Complaint were essentially the same as those in the original complaint, see Compl. paras. 6-16 (Jan. 2, 1985), and in the first amended complaint, see First Amended Compl. paras. 6-16 (Jan. 14, 1986). In the Second Amended Complaint, however, respondent abandoned his state law tort claims and added the allegation that petitioner had interfered with his ability to pursue his profession, in violation of the Fifth Amendment Due Process Clause. Motion for Leave to Amend Complaint 2-3 (dated Nov. 5, 1985). /8/ Decl. of Special Agent Lynn Jay Ferrin paras. 8-10 (May 18, 1987) (Ferrin Decl.). /9/ Decl. of Herman Louis Di Martini (June 26, 1987) (Di Martini Decl.). /10/ At the same time, the court of appeals found no support for respondent's allegation that petitioner had deprived him of the opportunity to obtain other employment in the casino industry. "On summary judgment, a plaintiff is not entitled to survive on vague assumptions about informal communications within an industry." App., infra, 11a. /11/ Although we disagree with the analysis of that issue by the court below and with its conclusion, we do not challenge that ruling in this petition. /12/ In Young v. Lynch, the Fourth Circuit, relying on Forsyth, overruled its earlier decisions holding that a defendant cannot immediately appeal the denial of a qualified immunity claim if the plaintiff has also sought injunctive relief. 846 F.2d at 961-963 (overruling England v. Rockefeller, 739 F.2d 140 (4th Cir.), cert. denied, 469 U.S. 948 (1984), and Bever v. Gilbertson, 724 F.2d 1083 (4th Cir.), cert. denied, 469 U.S. 948 (1984)). /13/ See also Musso v. Hourigan, 836 F.2d 736, 742 n.1 (2d Cir. 1988) (relying on the line of circuit court decisions cited in the text to find appellate jurisdiction over the denial of a qualified immunity claim where the defendant was subject to a trial for damages on other grounds); Bolden v. Alston, 810 F.2d 353, 356-357 (2d Cir. 1987) (upholding appellate jurisdiction when the district court had resolved the defendant's qualified immunity claim and the merits of the plaintiff's claims, but had not yet ruled on the plaintiff's request for injunctive relief), cert. denied, 484 U.S. 896 (1987); Brown v. Texas A & M Univ., 804 F.2d 327, 331-332 (5th Cir. 1986) (relying on Forsyth to uphold appellate jurisdiction over the defendant's appeal from the denial of qualified immunity in an action under 42 U.S.C. 1983 even though the defendant was also sued in his official capacity under the Age Discrimination in Employment Act of 1967, 29 U.S.C. 621, and that claim would proceed to trial). /14/ Although Marx v. Gumbinner involved a claim of absolute rather than qualified immunity, the Eleventh Circuit did not distinguish between the two types of claims for purposes of appellate jurisdiction. /15/ We presented the jurisdictional question as one of two questions in our certiorari petition in the Prisco case. Although the Court denied certiorari in Prisco, a question arose in that case whether the appellate jurisdiction issue had become moot, and that question may have affected the Court's decision not to grant review. /16/ "Although the affidavit contained no support for (respondent's) allegation that (petitioner) attempted to coerce him into committing perjury, it does allege the facts from which (respondent) apparently inferred an intent to get him to testify 'or else.'" App., infra, 11a. /17/ "(W)hile the affidavit contained no reference to an attempt by (petitioner) to coerce (respondent's) employer in order to secure (respondent's) discharge, (respondent) could not have attested to any coercion of the employer if he had no personal knowledge of such coercion." App., infra, 11a. /18/ Thus, the Tenth Circuit rejected the plaintiff's contention that her claim of age discrimination required discovery, ruling that her circumstantial evidence and conclusory allegations were inadequate to defeat qualified immunity. 903 F.2d at 759-760. APPENDIX