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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