EPA v. Hernandez

United States Court of Appeals
For the First Circuit

No. 03-1588

EDUCADORES PUERTORRIQUEÑOS EN ACCIÓN ET AL.,

Plaintiffs, Appellants,

v.

CÉSAR REY HERNÁNDEZ, IN HIS PERSONAL CAPACITY AND AS SECRETARY OF
THE PUERTO RICO DEPARTMENT OF EDUCATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Selya, Circuit Judge.

Francisco R. Gonzalez, with whom F. R. Gonzalez Law Office was
on brief, for appellants.
Hector J. Benitez Arraiza, with whom Luiselle Quiñones
Maldonado and Llovet Zurinaga & López, P.S.C. were on brief, for
appellee.

May 10, 2004
 SELYA, Circuit Judge. For years, courts in this circuit

have required plaintiffs to satisfy a heightened pleading standard

in civil rights actions. We recently have retreated from this view

in specified instances. Today, however, we are presented with an

opportunity to reexamine the propriety of this praxis globally in

light of emergent Supreme Court precedent. Because neither the

Civil Rules nor any applicable statute authorizes the imposition of

a heightened pleading standard for civil rights actions, we

disclaim our earlier practice and overrule the decisions

authorizing it. Since the district court's determination rests on

that heightened pleading standard, we vacate the order of dismissal

and remand for further proceedings consistent with this opinion.

I. BACKGROUND

A brief recitation of the facts suffices to situate the

pivotal legal issue. As is always the case on a Rule 12(b)(6)

dismissal, we accept as true the factual averments of the complaint

and draw all reasonable inferences therefrom in the plaintiffs'

favor. LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508

(1st Cir. 1998).

Puerto Rico's so-called electoral prohibition — a ban on

certain public-sector personnel actions during the two months

preceding and the two months following a general election, see 3

P.R. Laws Ann. § 1337 — lies at the heart of this controversy. In

the November 7, 2000 gubernatorial election, the voters ousted the

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reigning New Progressive Party (NPP) and elected the candidate of

the rival Popular Democratic Party (PDP). The plaintiffs, all

members of the NPP, are career employees of the Puerto Rico

Department of Education (PRDE). Each of them was hired,

reclassified, reinstated, and/or granted a pay increase by the

outgoing administration during the electoral prohibition period.

When the new regime took office, its functionaries declared these

personnel actions null and void and informed the plaintiffs that

they would be returned to the status quo ante.

Dismayed by this reversal of fortune, the plaintiffs

banded together and brought suit against the Secretary of the PRDE

(in both his individual and official capacities). Their complaint

invoked 42 U.S.C. § 1983 and alleged (i) discrimination based on

political affiliation in violation of the First Amendment, and (ii)

a deprivation of property without due process of law in violation

of the Fourteenth Amendment. These charges were based largely on

the plaintiffs' assertion that the pre-regime-change personnel

actions were valid due to officially authorized (or at least

routinely tolerated) exemptions from the electoral prohibition.

The defendant (appellee here) moved to dismiss the

complaint for failure to state an actionable claim, Fed. R. Civ. P.

12(b)(6), and the district court obliged. See Educadores

Puertorriqueños En Acción v. Rey Hernández, 257 F. Supp. 2d 446

(D.P.R. 2003). In reaching its decision, the court applied "the

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heightened pleading requirement established by the First Circuit in

civil rights cases." Id. at 452 (citing Judge v. City of Lowell,

160 F.3d 67, 72 (1st Cir. 1998)). In the court's view, this

standard required the plaintiffs to include in their complaint

subsidiary facts sufficient to support their allegations that

political animus was the driving force behind the rescission of the

favorable personnel actions and that those actions came within

exceptions to the electoral prohibition. Id. at 452-53. Because

the plaintiffs' complaint failed to achieve this degree of

specificity, the court dismissed the action. Id. at 454. This

appeal ensued.

II. DISCUSSION

Our analysis begins with an examination of the district

court's conclusion that this court has established a heightened

pleading standard for some, if not all, civil rights cases. We

then turn to the relevant Supreme Court case law and inquire

whether the Court's recent pronouncements, especially its decision

in Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002), have

effectively undermined our allegiance to a heightened pleading

standard in civil rights cases. Answering this inquiry in the

affirmative, we vacate the order of dismissal and remand for

further proceedings consistent with this opinion.

Historically, this court has expressed concern about the

use of skeletal pleadings in civil rights cases. Our concern was

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prompted in part by a fear that so loose a structure might

needlessly embroil officials in contrived litigation, in part by

worries that it might facilitate widespread misuse of section 1983,

and in part by the desire not to erode the salutary protections

afforded by the doctrine of qualified immunity. See, e.g., Dewey

v. Univ. of N.H., 694 F.2d 1, 3-4 (1st Cir. 1982); Slotnick v.

Staviskey, 560 F.2d 31, 33 (1st Cir. 1977). Consequently, we

traditionally have held plaintiffs alleging civil rights violations

to something more stringent than mere notice pleading. See, e.g.,

Boston & Me. Corp. v. Town of Hampton, 987 F.2d 855, 866 (1st Cir.

1993) ("[A] heightened requirement of specificity is well

established for . . . allegations of civil rights violations.");

Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 16-17 (1st Cir.

1989) ("[T]he key question is whether plaintiffs assembled specific

facts adequate to show or raise a plausible inference that they

were subjected to race-based discrimination." (emphasis supplied)).

Under this enhanced standard, it is not enough that a complaint

give a defendant notice of a plaintiff's claim and the grounds upon

which that claim rests. Rather, "[t]he alleged facts must

specifically identify the particular instance(s) of discriminatory

treatment and, as a logical exercise, adequately support the thesis

that the discrimination was unlawful." Correa-Martinez v.

Arrillaga-Belendez, 903 F.2d 49, 53 (1st Cir. 1990).

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 Although this heightened pleading standard in some shape

or form has proven to be a hardy plant, we have from time to time

reexamined the appropriateness of its application. Those

reappraisals took place in response to two recent Supreme Court

cases. See Crawford-El v. Britton, 523 U.S. 574 (1998); Leatherman

v. Tarrant County Narcotics Intell. & Coord. Unit, 507 U.S. 163

(1993). We turn next to those decisions.

In Leatherman, the Court rejected a heightened pleading

standard imposed by the Fifth Circuit in a case alleging municipal

liability under section 1983. Two concerns animated the decision.

First, the Court found the heightened pleading standard difficult

to square with the liberal system of notice pleading created by the

Civil Rules. Leatherman, 507 U.S. at 168 (discussing Fed. R. Civ.

P. 8(a)(2)). Second, the Court found no compelling reason to erect

barriers to discovery in a municipal liability action, considering

the well-established rule that — unlike various government

officials — municipalities do not enjoy qualified immunity. Id. at

166-67. At the very least, Leatherman precluded the use of a

heightened pleading standard in section 1983 cases brought against

municipalities. Accord Gorski v. N.H. Dep't of Corr., 290 F.3d

466, 473 n.6 (1st Cir. 2002); Romero-Barcelo v. Hernandez-Agosto,

75 F.3d 23, 35 (1st Cir. 1996); Atchinson v. District of Columbia,

73 F.3d 418, 421 (D.C. Cir. 1996); Edgington v. Mo. Dep't of Corr.,

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52 F.3d 777, 779 n.3 (8th Cir. 1995); Schultea v. Wood, 47 F.3d

1427, 1432 (5th Cir. 1995) (en banc).

Five years after Leatherman, the Supreme Court decided

Crawford-El. There, the Court mulled a heightened evidentiary

standard adopted by the D.C. Circuit in constitutional tort actions

that demanded proof of improper motive and were brought against

government officials in their individual capacities. The D.C.

Circuit had required plaintiffs in such cases to adduce "clear and

convincing evidence" of improper motive in order to defeat motions

for summary judgment. Crawford-El, 532 U.S. at 584. On review,

the Supreme Court ruled that this evidentiary burden was too heavy.

Id. at 594-97.

Crawford-El was not a pleading case simpliciter — it

dealt with the appropriate quantum of evidence and arose on summary

judgment. Nevertheless, the circumstances were sufficiently

analogous for us to question whether the Court's comments torpedoed

our heightened pleading standard. In Judge v. City of Lowell, 160

F.3d 67 (1st Cir. 1998), a panel of this court ruled that our

heightened pleading standard survived, at least in a case brought

against an individual government official "alleging a

constitutional violation calling for proof of an illegal motive."

Id. at 73. In reaching that conclusion, the panel placed heavy

reliance on dictum in which the Crawford-El Court indicated its

awareness of the difficulties inherent in trying to dispose of

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insubstantial civil rights claims when those claims hinge on an

official's state of mind. See id. at 74. In that dictum, the

Court stated that "the [trial] court may insist that the plaintiff

put forward specific, nonconclusory factual allegations that

establish improper motive causing cognizable injury in order to

survive a prediscovery motion for dismissal or summary judgment."

Crawford-El, 523 U.S. at 598 (citation and internal quotation marks

omitted). Based on this statement, the Judge panel concluded "that

the five Justices writing for the Court in Crawford-El permitted an

approach similar to ours in Dartmouth Review and Correa-Martinez .

. . — although the Court limited its carefully-phrased endorsement

of that approach to constitutional claims in which 'improper

motive' was an essential element for plaintiff to prove." Judge,

160 F.3d at 74. The panel therefore reiterated that an official's

improper motive must "be pleaded by alleging specific non-

conclusory facts from which such a motive may reasonably be

inferred, not merely by generalized asseveration alone." Id. at 72

(citing Correa-Martinez, 903 F.2d at 53).

Whatever window of opportunity we thought remained open

after Crawford-El has been slammed shut by the Supreme Court's

subsequent decision in Swierkiewicz. There, the Court rejected the

Second Circuit's requirement that a plaintiff claiming employment

discrimination include in his or her complaint "specific facts

establishing a prima facie case of discrimination." 534 U.S. at

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508. In so holding, the Swierkiewicz Court explained that the

simplified pleading standard limned in Fed. R. Civ. P. 8(a)

"applie[s] to all civil actions, with limited exceptions." Id. at

513. Although the Court did not furnish a complete list of

exceptions, it specifically distinguished cases of fraud and

mistake, for which the Civil Rules themselves dictate the

application of a heightened pleading standard. Id. (citing Fed. R.

Civ. P. 9(b)). In contrast, the Court noted that "the Federal

Rules do not contain a heightened pleading standard for employment

discrimination suits." Id. at 515.

Since the date of that decision, the district courts in

the First Circuit have existed in a state of uncertainty as to the

relationship (if any) between the Court's analysis in Swierkiewicz

and our own endorsement of a heightened pleading standard for use

in civil rights cases. Some decisions have adhered to circuit

precedent and, like the decision below, have continued to enforce

a heightened pleading standard. See, e.g., Data Research Corp. v.

Rey Hernandez, 261 F. Supp. 2d 61, 73-74 (D.P.R. 2003); Lorenzo v.

Gallant, 2002 WL 31833751, at *8-*9 (D. Mass. Dec. 16, 2002).

Others have abandoned that standard, treating Swierkiewicz as

having effectively overruled Judge and the earlier cases on which

Judge depended. See, e.g., Torres Ocasio v. Melendez, 283 F. Supp.

2d 505, 512-13 (D.P.R. 2003); Greenier v. Pace, Local No. 1188, 201

F. Supp. 2d 172, 176-77 (D. Me. 2002). A third group of cases have

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elevated discretion above valor and studiously avoided the choice.

See, e.g., Hernandez Carrasquillo v. Rivera Rodriguez, 281 F. Supp.

2d 329, 332 (D.P.R. 2003); Dellairo v. Garland, 222 F. Supp. 2d 86,

89-90 (D. Me. 2002). Although two recent cases from this court

have outlawed the use of a heightened pleading standard in specific

instances and hinted broadly that a heightened pleading standard

for all civil rights cases (no matter what the circumstances) is a

thing of the past, see Torres-Viera v. Laboy-Alvarado, 311 F.3d

105, 108 (1st Cir. 2002) (observing, without acknowledging Judge,

that "plaintiffs are not held to higher pleading standards in §

1983 actions"); Gorski, 290 F.3d at 473 (confirming that

Swierkiewicz precludes the use of a heightened pleading standard in

the particular subset of civil rights cases known as employment

discrimination suits), neither of these decisions diagnosed Judge's

continued viability. Moreover, neither of them ventured to say

outright whether Swierkiewicz pretermits the use of a heightened

pleading standard in all civil rights cases. We think that the

time has come to address that wider question head-on and allay all

doubt.

The recent Supreme Court jurisprudence, catalogued above,

evinces a developing trend. This trend has approached crystalline

form with Swierkiewicz. The Court evidently has decided to place

greater emphasis on the source of a pleading standard than on the

instances in which it is applied. By this we mean that the Court

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has signaled its disapproval of all heightened pleading standards

except those that emanate from either congressional or Rule-based

authority. Strong language in Swierkiewicz makes plain that

federal courts should refrain from crafting heightened pleading

standards, regardless of the special circumstances those standards

are intended to address. In the Court's words: "A requirement of

greater specificity for particular claims is a result that 'must be

obtained by the process of amending the Federal Rules, and not by

judicial interpretation.'" Swierkiewicz, 534 U.S. at 515 (quoting

Leatherman, 507 U.S. at 168); cf. Crawford-El, 523 U.S. at 595

(commenting that "questions regarding pleading, discovery, and

summary judgment are most frequently and most effectively resolved

either by the rulemaking process or the legislative process").

The handwriting is on the wall. Swierkiewicz has sounded

the death knell for the imposition of a heightened pleading

standard except in cases in which either a federal statute or

specific Civil Rule requires that result.1 In all other cases,

courts faced with the task of adjudicating motions to dismiss under

Rule 12(b)(6) must apply the notice pleading requirements of Rule

8(a)(2). Under that rule, a complaint need only include "a short

and plain statement of the claim showing that the pleader is

1
The appellee notes that Swierkiewicz is a Title VII case and
suggests that its teachings should be confined to that sphere. The
Court's broad and unequivocal language belies that suggestion. In
our view, Swierkiewicz is fully applicable to all civil rights
actions.

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entitled to relief." This statement must "give the defendant fair

notice of what the plaintiff's claim is and the grounds upon which

it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957). State of

mind, including motive and intent, may be averred generally. Cf.

Fed. R. Civ. P. 9(b) (reiterating the usual rule that "[m]alice,

intent, knowledge, and other condition of mind of a person may be

averred generally"). In civil rights actions, as in the mine-run

of other cases for which no statute or Federal Rule of Civil

Procedure provides for different treatment, a court confronted with

a Rule 12(b)(6) motion "may dismiss a complaint only if it is clear

that no relief could be granted under any set of facts that could

be proved consistent with the allegations." Hishon v. King &

Spaulding, 467 U.S. 69, 73 (1984).

Given the lessons of Swierkiewicz, our duty is made

manifest. We join several of our sister circuits in holding that

there are no heightened pleading standards for civil rights cases.2

See Phelps v. Kapnolas, 308 F.3d 180, 186-87 & n.6 (2d Cir. 2002)

(per curiam); Galbraith v. County of Santa Clara, 307 F.3d 1119,

2
Following the procedure described in Gallagher v. Wilton
Enterprises, Inc., 962 F.2d 120, 124 n.4 (1st Cir. 1992) (per
curiam), the proposed panel opinion in this case has been
circulated to all active judges of the court prior to publication,
and none has interposed an objection to the panel's overruling of
prior circuit precedent. We caution that this procedure does not
convert this opinion to an en banc decision nor does it preclude a
suggestion of rehearing en banc on any issue in the case, whether
or not related to the panel's treatment of the appropriate pleading
standard for civil rights actions.

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1121, 1123-26 (9th Cir. 2002); Goad v. Mitchell, 297 F.3d 497, 502-

03 (6th Cir. 2002); Higgs v. Carver, 286 F.3d 437, 439 (7th Cir.

2002); Currier v. Doran, 242 F.3d 905, 911-17 (10th Cir. 2001); see

also 2 James Wm. Moore et al., Moore's Federal Practice § 9.10[2],

at 9-66 (3d ed. 2004).

Let us be perfectly clear. The rule that we announce

today is not contingent on the type of civil rights case, the

capacity in which a particular defendant is sued, the availability

vel non of a qualified immunity defense, or the need (or lack of

need) for proof of illegal motive. All civil rights actions are

subject to Rule 8(a)'s notice pleading regime. To the extent that

preexisting circuit precedent contradicts this holding, we regard

that precedent as abrogated by recent Supreme Court case law.

We hasten to add that the demise of our traditional

heightened pleading standard does not leave either government

officials or district courts at the mercy of overly aggressive

plaintiffs. The Court itself has pointed the way: "[g]iven the

wide variety of civil rights and 'constitutional tort' claims that

trial judges confront, broad discretion in the management of the

factfinding process may be more useful and equitable to all the

parties than [categorical rules imposed by the appellate courts]."

Crawford-El, 523 U.S. at 600-01. To lend credibility to this

statement, the Court has taken pains to assure its audience that a

number of alternatives are available to aid trial courts in early

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detection of potentially meritless claims. See Swierkiewicz, 534

U.S. at 514; Crawford-El, 523 U.S. at 598-600; Leatherman, 507 U.S.

at 168-69. A trial court may, for example, order the plaintiff to

reply to the defendant's answer to the complaint, see Fed. R. Civ.

P. 7(a); grant the defendant's request for a more definite

statement, see Fed. R. Civ. P. 12(e); or tailor discovery narrowly

to protect the defendant from "annoyance, embarrassment,

oppression, or undue burden," Fed. R. Civ. P. 26(c). In extreme

cases, a court may protect public officials from harassment either

by sanctioning plaintiffs who file papers that are lacking in

factual support, see Fed. R. Civ. P. 11, or by dismissing forma

pauperis suits that are "frivolous or malicious," 28 U.S.C. §

1915(e)(2). And, finally, summary judgment remains a viable option

in civil rights cases in which the plaintiff's aspirations exceed

the proof that he or she can muster. See Fed. R. Civ. P. 56.

To all of this, we add a coda. Our decision here should

not be read as an abandonment of our oft-quoted statement that

"notice pleading notwithstanding, Rule 12(b)(6) is not entirely a

toothless tiger." Dartmouth Review, 889 F.2d at 16. Two points

come readily to mind.

First, we note that the Swierkiewicz Court, 534 U.S. at

513 n.4, embraced the illustrative pleading set forth in the forms

appended to the Federal Rules of Civil Procedure. The Court cited

approvingly Form 9's "complaint for negligence in which plaintiff

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simply states in relevant part: 'On June 1, 1936, in a public

highway called Boylston Street in Boston, Massachusetts, defendant

negligently drove a motor vehicle against plaintiff who was then

crossing said highway.'" Id. (quoting Form 9); cf. Fed. R. Civ. P.

84 (explaining that the appended forms "are sufficient under the

rules and are intended to indicate the simplicity and brevity of

statement which the rules contemplate"). From this we intuit that,

in a civil rights action as in any other action subject to notice

pleading standards, the complaint should at least set forth minimal

facts as to who did what to whom, when, where, and why — although

why, when why means the actor's state of mind, can be averred

generally. As we have said in a non-civil-rights context, the

requirements of Rule 8(a)(2) are minimal — but "minimal

requirements are not tantamount to nonexistent requirements."

Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988).

Second, in considering motions to dismiss courts should

continue to "eschew any reliance on bald assertions, unsupportable

conclusions, and opprobrious epithets." Chongris v. Bd. of

Appeals, 811 F.2d 36, 37 (1st Cir. 1987) (citation and internal

quotation marks omitted). Such eschewal is merely an application

of Rule 8(a)(2), not a heightened pleading standard uniquely

applicable to civil rights claims. See Correa-Martinez, 903 F.2d

at 52-53 (treating the general no-bald-assertions standard and the

heightened pleading standard for civil rights cases as two separate

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requirements); see also Higgs, 286 F.3d at 439 (rejecting the idea

of "special pleading rules for prisoner civil rights cases," but

nonetheless requiring complaints to meet some measure of

specificity). As such, we have applied this language equally in

all types of cases. See, e.g., Arruda v. Sears, Roebuck & Co., 310

F.3d 13, 18 (1st Cir. 2002) (holding plaintiff to this standard in

a bankruptcy action); LaChapelle, 142 F.3d at 508 (holding

plaintiff to this standard in an action alleging breach of contract

and intentional infliction of emotional distress). We will

continue to do so in the future.

III. CONCLUSION

We need go no further. To state the obvious, "prior

circuit precedent [must] yield to a contrary decision of the

Supreme Court." Stewart v. Dutra Constr. Co., 230 F.3d 461, 467

(1st Cir. 2000). So here: the lower court applied a heightened

pleading standard that, albeit drawn from preexisting case law, was

impermissible under Swierkiewicz. Hence, we vacate the order of

dismissal and remand for further proceedings consistent with this

opinion.

Vacated and remanded.

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