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

93 F.3d 813, 320 U.S. App. D.C. 150, 1996 U.S. App. LEXIS 21970, 1996 WL 480432

• Court: Court of Appeals for the D.C. Circuit
• Decided: August 27, 1996
• Docket: 94-7203
• Status: Published

Opinions

Opinion for the court filed by Circuit Judge WILLIAMS.

Concurring opinion filed by Circuit Judge SILBERMAN.

Concurring opinion filed by Circuit Judge GINSBURG.

Concurring opinion filed by Circuit Judge HENDERSON.

Opinion filed by Chief Judge EDWARDS, concurring in the judgment to remand.

STEPHEN F. WILLIAMS, Circuit Judge:

We decided to hear this ease en banc on our own initiative in order to resolve continuing disputes as to how a government official’s assertion of qualified immunity, as a defense to a damage action for a constitutional tort, may affect pleading and summary judgment standards where the unconstitutionally of the official’s act turns on his motive. Our inquiry is framed by the competing goals described by the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800, 816-18, 102 S.Ct. 2727, 2737-38, 73 L.Ed.2d 396 (1982) — vindicating constitutional rights but at the same time protecting officials from exposure to discovery and trial that would unduly chill their readiness to exercise discretion in the public interest. We here discard our former solution — a requirement that the plaintiff allege “direct” evidence of unconstitutional motive. See, e.g., Siegert v. Gilley, 895 F.2d 797 (D.C.Cir.1990), aff'd. on other grounds, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). But we read Harlow as calling for alternative rules to protect officials. First, we think Harlow allows an official to get summary judgment resolution of the qualified immunity issue, including the question of the official’s state of mind, before the plaintiff has engaged in discovery on that issue. Second, we believe that unless the plaintiff offers clear and convincing evidence on the state-of-mind issue at summary judgment and trial, judgment or directed verdict (as appropriate) should be granted for the individual defendant.

Crawford-El is a prisoner in the District of Columbia’s correctional system serving a life sentence for murder. He filed the present lawsuit in 1989, claiming that the individual defendant, Patricia Britton, a D.C. correctional official, and the District of Columbia had misdelivered boxes belonging to him containing legal papers, clothes and other personal items, thereby violating his constitutional right of access to the courts. When Britton moved for dismissal and for summary judgment on grounds of qualified immunity, the district court denied the motion and Britton appealed. We reviewed Crawford-El’s allegations under a “heightened pleading” requirement, insisting that the plaintiff in such a case advance “non-conclusory allegations that are sufficiently precise to put defendants on notice of the nature of the claim and enable them to prepare a response and, where appropriate, a summary judgment motion on qualified immunity grounds.” Crawford—El v. Britton, 951 F.2d 1314, 1317 (D.C.Cir.1991) (quotations omitted). By this standard we found his claims wanting. Because we thought that our heightened pleading doctrine had become clearer in ways adverse to plaintiff since his pleading, however, we remanded the case to the district court in case that court, in its discretion, should decide to permit repleading. Id. at 1322.

On remand the district court indeed granted permission, and Crawford-El filed his Fourth Amended Complaint. There he re-pleaded the aceess-to-courts claim, but without adding material to fill the gap identified in our first opinion. He also pleaded a due process claim. The district court dismissed both claims, and a panel of this court affirmed. Crawford-El v. Britton, No. 94-7203, mem. op. at 1-2, 1995 WL 761781 (D.C.Cir. Nov. 28, 1995). In addition, Crawford-El charged that the defendants’ alleged misdelivery of his belongings was in retaliation for various feisty communications with the press and thus in violation of the First Amendment. (This claim had initially appeared in his briefing on the first round in this court. See Crawford-El, 951 F.2d at 1316.) The district court granted the defendants’ motion to dismiss the First Amendment claim as well, saying that the complaint did not allege “direct” evidence of unconstitutional motivation and citing Siegert v. Gilley, 895 F.2d 797, 800-802 (D.C.Cir.1990), aff'd on other grounds, 500 U.S. 226, 231, 111 S.Ct. 1789, 1792-93, 114 L.Ed.2d 277 (1991), our court’s most emphatic statement of the “direct” evidence requirement. Crawford-El v. Britton, 844 F.Supp. 795, 802 (D.D.C.1994). After affirming dismissal of the first two claims, the panel suggested, and the court en banc agreed, that the dismissal of the First Amendment retaliation claim should be heard by the court en banc.1

The background law on subjective motivation and qualified immunity.

In Harlow v. Fitzgerald the Court reformulated its test for officials’ qualified immunity in constitutional tort actions. For acts to which qualified immunity may apply,² it held that the plaintiff can prevail only by showing not just that there was a violation, but that defendant’s acts violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” 457 U.S. at 818, 102 S.Ct. at 2738. It thus excluded liability where there was a violation (but not of a right so clearly established that a reasonable person would have known of it) even when the official acted “with the malicious intention to cause a deprivation of constitutional rights or other injury.” Id. at 815, 102 S.Ct. at 2737 (quoting Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975)).

The Court was quite explicit as to the purpose of its change. It noted that claims against officers necessarily included ones “against the innocent as well as the guilty,” and that among the “social costs” of such suits were “the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office.” Id. at 814,102 S.Ct. at 2736. Last but not least, it invoked Judge Hand’s opinion in Gregoire v. Biddle, 177 F.2d 579 (2d Cir.1949), which had argued that the fear of being sued would “dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.” 177 F.2d at 581 (quoted in Harlow, 457 U.S. at 814, 102 S.Ct. at 2736). It saw the inclusion of liability based on subjective malice as greatly increasing all these costs. Because such liability opened up a wide field of inquiry, often with “no clear end to the relevant evidence” bearing on the official’s “experiences, values, and emotions,” and typically not susceptible of disposition by summary judgment, its resolution was “peculiarly disruptive of effective government.” Id. at 816-17, 102 S.Ct. at 2737-38. Most notably for our purposes, the Court underscored the burdensome character of discovery flowing from such liability. See id. at 817, 102 S.Ct. at 2737 (speaking of the “broad-ranging discovery” that would result from allowing such claims); id. at 818, 102 S.Ct. at 2738 (speaking of the resulting “broad-reaching discovery”). Moreover, the Court said, such liability would thwart what had been its assumption in its earlier definition of qualified immunity—that “[insubstantial lawsuits would be quickly terminated.” Id. at 814, 102 S.Ct. at 2736 (quoting Butz v. Economou, 438 U.S. 478, 507-508, 98 S.Ct. 2894, 2911, 57 L.Ed.2d 895 (1978)). Accordingly the Court held that qualified immunity could be penetrated only on a showing of objective unreasonableness—the now familiar requirement of “clearly established” rights. Id. at 818, 102 S.Ct. at 2738. Henceforth, “bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery.” Id. at 817-18, 102 S.Ct. at 2738. The Court later described Harlow as having “purged qualified immunity doctrine of its subjective components.” Mitchell v. Forsyth, 472 U.S. 511, 517, 105 S.Ct. 2806, 2810, 86 L.Ed.2d 411 (1985); see also Davis v. Scherer, 468 U.S. 183, 191, 104 S.Ct. 3012, 3017, 82 L.Ed.2d 139 (1984).

In fact, under the decisions of every circuit court addressing the matter, Harlow has not accomplished the stated purpose. This circuit and others have understood Harlow to allow inquiry into subjective motivation where an otherwise constitutional act becomes unconstitutional only when performed with some sort of forbidden motive (such as, here, the claim that Britton’s decisions routing Crawford-El’s parcels were driven by a desire to penalize his exercise of free speech rights). See, e.g., Siegert v. Gilley, 895 F.2d at 800-801; Whitacre v. Davey, 890 F.2d 1168, 1171 (D.C.Cir.1989); Martin v. D.C. Metropolitan Police Dept., 812 F.2d 1425, 1431 (D.C.Cir.1987); Gooden v. Howard County, Md., 954 F.2d 960, 969-70 (4th Cir.1992) (en banc); Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 649 (10th Cir.1988); Elliott v. Thomas, 937 F.2d 338, 344—45 (7th Cir.1991); Branch v. Tunnell, 14 F.3d 449, 452 (9th Cir.1994); cf. Halperin v. Kissinger, 807 F.2d 180, 186-87 (D.C.Cir.1986) (noting this court’s and others’ decisions to allow unconstitutional motive claims in areas other than national security). Even though it has entailed many of the “social costs” of inquiry into subjective motivation stated in Harlow, courts have concluded that the vindication of constitutional rights calls for damages liability — often the only device available for such vindication. Halperin, 807 F.2d at 186.

In Hobson v. Wilson, 737 F.2d 1 (D.C.Cir.1984), we recognized the problem, noting that a plaintiffs claim of unconstitutional motive could easily lead to discovery and trial, with no hope of success, and the “result would be precisely the burden Harlow sought to prevent.” Id. at 29. We decided that for claims of which unconstitutional intent was an essential part, “nonconclusory allegations of evidence of such intent must be present in a complaint for litigants to proceed to discovery on the claim. The allegations on this issue need not be extensive, but they will have to be sufficiently precise to put defendants on notice of the nature of the claim and enable them to prepare a response and, where appropriate, a summary judgment motion on qualified immunity grounds.” Id. This did not speak explicitly to the issue of whether a plaintiff must surmount any particular burden in order to secure discovery. But in Martin v. D.C. Metropolitan Police we specifically took the view that the substantive characteristics of cases involving qualified immunity and unconstitutional motive required deviation from garden-variety application of the Federal Rules of Civil Procedure’s liberal pleading and discovery rules. We quoted at length and with evident approbation from a Fifth Circuit decision:

What is a federal trial judge to do? One thing he may not do: face it as just another lawsuit in which the notice pleading’s liberal policy of F.R. Civ. P. 8 counts on pre-trial discovery to ascertain the factual basis for the elaim[.] ... Allowing pretrial depositions, especially those taken adversely of the government official to ferret all of his actions and the reasons therefor ... would defeat and frustrate the function and purpose of the ... immunity!.] ... [U]se of liberal discovery to establish the basis of a claim is directly at odds with the Court’s direction in Harlow that government officials entitled to immunity [are to] be freed from the burdens, the stress, the anxieties and the diversions of pretrial preparations.

Martin, 812 F.2d at 1437 (R.B. Ginsburg, J.) (quoting Elliott v. Perez, 751 F.2d 1472, 1479 (5th Cir.1985)) (footnotes omitted).

Our holding in Martin both imposed a “direct evidence” requirement and related it to the problem of discovery. To get to trial, we said, a plaintiff must produce “something more than inferential or circumstantial support for his allegation of unconstitutional motive. That is, some direct evidence [of improper motivation] must be produced.... ” 812 F.2d at 1435 (emphasis added). But we formulated no explicit rule on discovery. While we quoted Elliott’s exhortation about protecting officials from “the burdens, the stress, the anxieties and the diversions of pretrial preparations,” we also said that a complete ban on plaintiffs discovery of defendant before resolution of qualified immunity issues on summary judgment might turn the prior decisions allowing plaintiffs to raise claims of unconstitutional motive into an “empty gesture,” id. at 1437, and that we were “leaving some space for discovery,” id. We told district courts to employ “with particular care and sensibility their large authority to exercise control over discovery” in order to balance all the concerns properly. Id. at 1436-37.³

In Whitacre v. Davey we read Martin to require allegations of direct evidence of unconstitutional motive to survive a motion to dismiss and get discovery, 890 F.2d at 1171 & n. 4, but the point was not necessary to the case because the allegations of circumstantial evidence were inadequate even under the less demanding standard of Title VII, see id. at 1172. Finally, in Siegert v. Gilley, 895 F.2d at 802, we specifically held that “in order to obtain even limited discovery, such [unconstitutional] intent must be pleaded with specific, discernible facts or offers of proof that constitute direct as opposed to merely circumstantial evidence of the intent.” The pleading requirement entailed the discovery consequence: if defendant was entitled to dismissal of the case in the absence of specific assertions of direct evidence, there would be no occasion for discovery. Although the Supreme Court granted certiorari on the question whether “a ‘heightened pleading’ standard which precludes limited discovery prior to disposition on a summary judgment motion violates applicable law,” Pet. for Cert, i, quoted in Siegert v. Gilley, 500 U.S. 226, 237, 111 S.Ct. 1789, 1796, 114 L.Ed.2d 277 (1991) (Marshall, J., dissenting), the Court in fact affirmed on a different, “preliminary” issue, namely its conclusion that plaintiff had failed to allege a constitutional violation at all. Id. at 232-35, 111 S.Ct. at 1793-94. In Kimberlin v. Quinlan, 6 F.3d 789, 793-94 (D.C.Cir.1993), we applied our “direct evidence” requirement, and denied rehearing en banc with a flurry of concurring and dissenting opinions, 17 F.3d 1525 (D.C.Cir.1994). The Supreme Court granted certiorari, — U.S.-, 115 S.Ct. 929, 130 L.Ed.2d 876 (1995), but then vacated and remanded, — U.S.-, 115 S.Ct. 2552, 132 L.Ed.2d 252 (1995), for consideration in the light of Johnson v. Jones, — U.S.-, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), which clarified the circumstances permitting an interlocutory appeal from denial of a summary judgment motion by a defendant invoking qualified immunity; we then dismissed the Kimberlin appeal. No. 91-5315, 1995 WL 759464 (D.C.Cir. Nov. 8, 1995) (order remanding case to district court).

Because the district court here applied the “direct evidence” rule, 844 F.Supp. at 798 n.4, and found Crawford-El’s complaint wanting, id. at 802-03, the present case calls on us to decide whether the circuit should continue to apply that rule, foreclosing discovery unless the pleadings assert “direct evidence” of illicit motive. We find that question easy, at least if, as we believe, there are adequate alternative means of reconciling Harlow’s twin purposes in the context of constitutional torts dependent on the official’s having an improper motive. We first address the drawbacks of the “direct evidence” rule, and then consider alternative extrapolations from the logic of Harlow.

Deficiencies of the “direct evidence” requirement.

First, the distinction between direct and circumstantial evidence has no direct correlation with the strength of the plaintiffs case. While a perjured claim of having heard a confession of unconstitutional motive would meet the test, a massive circumstantial case would not. See Siegert v. Gilley, 500 U.S. at 236, 111 S.Ct. at 1795 (Kennedy, J., concurring) (rejecting D.C. Circuit’s direct/cireumstantial test on this ground); Elliott v. Thomas, 937 F.2d at 345 (same). Second, the distinction does not appear calibrated in any other way to the trade-offs found determinative by the Court in Harlow and qualified immunity doctrine generally. Although the rule presumably did reduce the incidence of motive-related damage suits against officers, we have no reason to think that it did any better as a screen than, say, a random rejection of nine out of every ten claims. The abandonment of circuit precedent era banc is of course not to be lightly undertaken. Critical Mass Energy Project v. NRC, 975 F.2d 871, 875 (D.C.Cir.1992) (en banc) (quoting Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 2310, 81 L.Ed.2d 164 (1984)). We have noted in contemplating such overrulings that treatment of the issue in other circuits is a factor to be considered. Id. at 876. Here, the only courts to consider our direct evidence rule have rejected it emphatically, see Elliott v. Thomas; Branch v. Tunnell, 937 F.2d 1382, 1386-87 (9th Cir.1991), as have the four Supreme Court justices who have chosen to speak on the matter. Siegert v. Gilley, 500 U.S. at 235-36, 111 S.Ct. at 1795 (Kennedy, J., concurring); id. at 245-46, 111 S.Ct. at 1800-01 (Marshall, J., with whom Blaekmun & Stevens, JJ., concurred, dissenting). Under the circumstances, we think it readily justifiable to overrule our precedents establishing the direet/eircumstantial distinction, without even addressing the question whether formulation of the rule as a pleading requirement violates the liberal pleading concepts established by the Federal Rules of Civil Procedure. See Leatherman v. Tarrant Co. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) (invalidating heightened pleading requirement invoked by municipal government unit as defense to constitutional tort, as violation of Rules 8 and 9(b), but reserving issue of holding’s application to claims against individual government officials).

Alternative protections inferred from Harlow.

In Harlow the Supreme Court assumed that it had established principles of officer liability that eliminated the litigation burdens associated with an official’s state of mind, or, as it put the point in Mitchell v. Forsyth, that it had “purged qualified immunity doctrine of its subjective components.” 472 U.S. at 517, 105 S.Ct. at 2810. For that proposition to be literally true, it would be necessary to reject any officer liability for constitutional torts in which the officer’s intent is an essential element in rendering the conduct unconstitutional. See Elliott v. Thomas, 937 F.2d at 344 (carrying out “the program of Harlow” would require imputing to defendants the best intent they could possibly have); see also Silberman Op., post (reading Harlow to extinguish liability for such torts). As Elliott noted, however, that would eliminate any damage remedy even for “egregious wrongdoing.” 937 F.2d at 344; see also Halperin, 807 F.2d. at 186. What, then, does Harlow suggest are appropriate devices to balance the interest in providing remedies against the interest in protecting officials from the undue litigation burdens, including, as Harlow emphasized, discovery itself?

We think the crux of the answer lies at the summary judgment phase of litigation. It divides into two questions: First, what methods may plaintiff use to secure evidence to resist the defendant’s motion for summary judgment? Second, must plaintiffs evidence substantively meet some higher standard than the conventional preponderance test?

1. Methods available to plaintiff for securing evidence for purposes of summary judgment resolution of qualified immunity. The primary burdens of litigation occur in discovery and trial. If the plaintiff can defer summary judgment while he uses discovery to extract evidence as to defendant’s state of mind, Harlow’s concern about exposing officials to debilitating discovery will generally be defeated in constitutional tort cases dependent on improper motive. After describing its objective test, the Court said, “Until this threshold immunity question is resolved, discovery should not be allowed.” 457 U.S. at 818, 102 S.Ct. at 2738. We can protect the sequence apparently insisted upon by Harlow — no discovery until there has been at least one cut at the qualified immunity issue — by the straightforward rule that plaintiff cannot defeat a summary judgment motion unless, prior to discovery, he offers specific, non-eonclusory assertions of evidence, in affidavits or other materials suitable for summary judgment, from which a fact finder could infer the forbidden motive. In his concurring opinion in Siegert, Justice Kennedy adumbrated this approach. Observing that “heightened pleading” was inconsistent with Federal Rules of Civil Procedure 8 and 9(b), he said:

But avoidance of disruptive discovery is one of the very purposes for the official immunity doctrine, and it is no answer to say that the plaintiff has not yet had the opportunity to engage in discovery. The substantive defense of immunity controls.

Upon the assertion of a qualified immunity defense the plaintiff must put forward specific, nonconclusory factual allegations which establish malice, or face dismissal.

500 U.S. at 236, 111 S.Ct. at 1795 (emphasis added).

In Elliott v. Thomas, 937 F.2d at 344-46, Judge Easterbrook spelled out the point in more detail. “Unless the plaintiff has the kernel of a case in hand [specific, nonconclu-sory allegations which establish the necessary mental state], the defendant wins on immunity grounds in advance of discovery.” Id. at 344-45. Because the substantive law — the law of qualified immunity per Harlow — tells the court what is needed for summary judgment, there is no conflict with Rule 56’s provision for summary judgment:

If a rule of law crafted to carry out the promise of Harlow requires the plaintiff to produce some evidence, and the plaintiff fails to do so, then Rule 56(c) allows the court to grant the motion for summary judgment without ado.

937 F.2d at 345 (emphasis added). This is, of course, substantially similar in result to the imposition of a “heightened pleading” standard, in that both prevent serious invasion of the defendant’s time unless the plaintiff can, without discovery, offer specifics of his case as to defendant’s motivation. See, e.g., Elliott v. Perez; Sawyer v. County of Creek, 908 F.2d 663, 665, 668 (10th Cir.1990) (noting that because plaintiff conceded inability to amend complaint without discovery, dismissal would be with prejudice).

Although neither Elliott nor Justice Kennedy’s concurrence in Siegert expressly addressed Rule 56(f), which authorizes the district judge to defer ruling on summary judgment and to provide for depositions and other discovery, the solution flows from their analysis of Harlow — its articulation of the substantive right of qualified immunity. To allow the plaintiff to engage in discovery, in order to carry his burden of establishing a basis for inferring improper motive, would violate Harlow’s determination to protect the official from discovery until the qualified immunity issue has been resolved. Under the Rules Enabling Act, the Federal Rules of Civil Procedure “shall not abridge, enlarge or modify any substantive right,” 28 U.S.C. § 2072(b), so that any reading of the Rules to trump officials’ substantive entitlements is impermissible.

We note that the rule preventing discovery concerning illicit motivation does not bar discovery concerning a defendant official’s state of mind for other purposes. A claim for damages for an allegedly unreasonable search or seizure will often turn on whether the defendant was in possession of facts that would have led a reasonable officer to suppose he had probable cause or exigent circumstances. See, e.g., Anderson v. Creighton, 483 U.S. 635, 640-41, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987) (relevant question in that case was “the objective (albeit fact-specific) question whether a reasonable officer could have believed Anderson’s warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed”) (emphasis added). Although the Anderson Court appeared to discourage discovery even in that context, see id. at 646-47 n. 6, 107 S.Ct. at 3042-43 n. 6, we do not understand its message as remotely approaching an absolute bar. Similarly, in Billman v. Indiana Dep’t of Corrections, 56 F.3d 785, 788-89 (7th Cir.1995), the Seventh Circuit said it would permit discovery to allow a prisoner to identify the proper defendants in an Eighth Amendment case where a defendant would be hable if it were shown that he knew plaintiffs cellmate was HIV-positive and had a tendency to rape cellmates, and was responsible for the assignment. The state-of-mind showings the plaintiffs had to make in Anderson and Billman thus went simply to the defendants’ acquisition of particular facts, not the broader inquiry into motivation at stake here.⁴ Our case would be equivalent if Crawford-El had simply to show that Britton knew the boxes contained legal papers (or something else of value to plaintiff) and was responsible for their transfer.

2. Requirement of clear and convincing evidence. There still remains the question whether the defendant’s entitlement to summary judgment on qualified immunity before plaintiffs discovery achieves an adequate balance in light of Harlow’s purposes. Conventional summary judgment principles supply some protection to defendants. Plaintiff must do better than “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, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). “The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient [to block summary judgment for defendant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). Here defendants argue that that is not enough. They propose a special standard, which they frame as a requirement of “strong evidence.” The United States as amicus proposes a similar heightened standard; framing the proposal in terms of pleading, it suggests that plaintiff be required to “plead specific facts giving rise to a strong inference of the alleged improper motive before any discovery will be permitted.”⁵

Two factors make us believe that the standard protection of summary judgment (coupled with the limit on discovery stated above) leave an exposure to both liability and litigation that is impossible to square with Harlow. First, unconstitutional motivation is, as is often said of civil fraud, easy to allege and hard to disprove. Bower v. Jones, 978 F.2d 1004, 1012 (7th Cir.1992) (citing Hollymatic Corp. v. Holly Systems, Inc., 620 F.Supp. 1366, 1369 (N.D.Ill.1985) (“[F]raud, focusing as it does on a subjective state of mind, can be very easy to allege and very difficult to prove or disprove.”)); see also Ross v. Bolton, 904 F.2d 819, 823 (2d Cir.1990) (rationale behind heightened pleading requirement for fraud in Rule 9(b) is preventing improvident charges of wrongdoing and strike suits); Charles A. Wright & Arthur R. Miller, 5 Federal Practice and Procedure § 1296 (1990) (same). Even cut off from the fruit of depositions and other discovery against the defendant and her colleagues, plaintiff will often be able to depict a selective pattern of decisions that, without evidence of a more complete set of comparable ones, and extensive explanation by one or more decision-makers, will look fishy enough that a jury could reasonably find illicit motive by a preponderance.

Second, Harlow plainly views the costs of error in the grant or denial of relief in such eases as asymmetrical. The decision expressed a strong concern about the social costs of damages litigation against officials— namely (to repeat), the conventional costs of litigation, the diversion of the officials’ time, deterrence of able persons from even accepting public office, and the chilling of officials’ readiness to exercise discretion in the public good. Because of those costs the Court adopted a rule categorically denying recovery where, if the truth could be fully known, there was a malicious perpetration of a constitutional violation (but not a violation of a right so clearly established that a reasonable person would have known he was crossing the line). This can only mean that the Court regarded at least some kinds of officer liability (those turning on subjective intent) as ones where, everything else being equal, the social costs of erroneously denying recovery in some cases were exceeded by the combined social costs of (1) litigating and (2) erroneously affording recovery in other cases.

A standard solution to such a difference in costs between two types of error is to adjust the standard of proof. Criminal law is the best known example, where it is seen as better to allow quite a few actually guilty defendants — perhaps many, in fact — to go free than for one innocent one to be convicted; ergo, the reasonable doubt standard. See, e.g., In re Winship, 397 U.S. 358, 372, 90 S.Ct. 1068, 1077, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring) (“[I]t is far worse to convict an innocent man than to let a guilty man go free.”); cf. 4 William Blackstone, Commentaries *358 (explaining two-witness rule in perjury cases). But civil law contains frequent applications of a more modest tilt, a requirement that the party seeking to mobilize the state to alter the status quo prove his case by clear and convincing evidence. Courts have set that hurdle in deportation proceedings, Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 285, 87 5.Ct. 483, 487-88, 17 L.Ed.2d 362 (1966); denaturalization proceedings, Schneiderman v. United States, 320 U.S. 118, 123, 63 S.Ct. 1333, 1335-36, 87 L.Ed. 1796 (1943); civil commitment proceedings, Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979); cases involving termination of parental rights, Santosky v. Kramer, 455 U.S. 745, 756, 102 S.Ct. 1388,1396, 71 L.Ed.2d 599 (1982); defamation suits against public figures, New York Times Co. v. Sullivan, 376 U.S. 254, 285-86, 84 S.Ct. 710, 728-29, 11 L.Ed.2d 686 (1964); and a variety of other civil cases such as civil fraud, lost wills, and oral contracts to make bequests, see Woodby, 385 U.S. at 285 n. 18, 87 S.Ct. at 488 n. 18 (citing 9 Wigmore on Evidence § 2498 (3d ed.1940)). Although we understand the specific standards urged by defendants and the United States (“strong evidence” and “strong inference”) to be aimed at similar concerns, we do not pursue them because of their uncertainty compared to the familiar clear and convincing standard.⁶

We pause to note a relationship between (1) the costs of litigation regardless of outcome and (2) a different societal valuation of the two types of error. Where the social costs of litigation itself are exceptionally high, assuming no difference at all in societal valuation of the two different types of error, that alone could be a ground for a tilt against the party seeking to alter the status quo. Because a reduction in the probability of success reduces the incentives to bring suit (everything else being equal), such a tilt will automatically reduce the aggregate costs of the affected class of lawsuits — at some cost in increasing the number of good claims that go uncompensated.⁷ Accordingly, imposition of a clear and convincing standard may imply (1) simply a perception that the type of litigation involves unusually high costs (so that a tilt against its initiators will decrease its incidence, the court regarding the increase in denials of recovery as an acceptable cost), or (2) a conclusion that errors in defendants’ favor are independently to be preferred to errors in plaintiffs’ favor, or (3) some combination of the two. If the holding of Harlow represented nothing else, it surely manifested either the first or third of those possibilities; after all, in one stroke it destroyed an entire group of claims for what was, by hypothesis, unconstitutional behavior.

The cases applying a clear and convincing evidence standard frequently allude to the second of these rationales (which of course is encompassed in the third). As the Court observed in Addington, a standard of proof both “indicated] the relative importance attached to the ultimate decision” and also “serves to allocate the risk of error between the litigants.” 441 U.S. at 423, 99 S.Ct. at 1808; see also Santosky, 455 U.S. at 755,102 S.Ct. at 1395-96 (citing Addington); Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 283, 110 S.Ct. 2841, 2854, 111 L.Ed.2d 224 (1990) (same). The Court illustrated this rationale in New York Times Co. v. Sullivan, quoting a Kansas Supreme Court case to support its actual malice standard: “ ‘[Occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great.’ ” 376 U.S. at 281, 84 S.Ct. at 726 (quoting Coleman v. MacLennan, 78 Kan. 711, 724, 98 P. 281 (1908)). The Supreme Court has used such terms in discussing special gradations of proof. Woodby, 385 U.S. at 284-85, 87 S.Ct. at 487-88; Addington, 441 U.S. at 423-25, 99 S.Ct. at 1808-09; Santosky, 455 U.S. at 755, 102 S.Ct. at 1395-96.

In developing the New York Times rule of clear and convincing evidence, the Court explicitly drew on the reasoning of Barr v. Matteo, 360 U.S. 564, 571, 575, 79 S.Ct. 1335, 1339, 1341, 3 L.Ed.2d 1434 (1959), in which it had extended and explicated absolute officer immunity for certain types of official acts. 376 U.S. at 282, 84 S.Ct. at 727. It recited Barr's entire litany of social costs of officer liability—essentially those later invoked in Harlow—as a parallel justifying its adoption of the New York Times rule. Id. If a heightened standard of proof—clear and convincing evidence—was a sound remedy in the area of public figure defamation, we think it is equally so in the cognate area of officer damage liability for constitutional torts based on improper motive.

Heightened standards of proof of course apply equivalently at summary judgment and at trial, as a seamless web. In Anderson v. Liberty Lobby, Inc. the Court made clear that just as the reasonable doubt standard for criminal trials implies its use in judicial evaluation of motions for acquittal, the clear and convincing standard for trial of malice for purposes of public figure defamation must imply “a corresponding effect” for motions for a directed verdict and for summary judgment. 477 U.S. at 252-54, 106 S.Ct. at 2512-13.⁸

What of the pleadings? The label “heightened pleading” for special requirements for constitutional torts involving improper motive was always a misnomer. A plaintiff is not required to anticipate the defense of qualified immunity in his complaint, Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923-24, 64 L.Ed.2d 572 (1980), and under the Federal Rules of Civil Procedure is required to file a reply to the defendant’s answer only if the district court exercises its authority under Rule 7(a) to order one. At stake has always been the ability of the plaintiff to inflict on the defendant officer liability and the serious burdens of litigation itself—discovery and trial. Although we understand the arguments of the court in Schultea v. Wood, 47 F.3d 1427, 1432-34 (5th Cir.1995), supporting a rule that where qualified immunity is raised in a case involving illicit motive the district court’s discretion not to order a reply “is narrow indeed,” we do not see why the limit on discovery and the standard of proof discussed above would not adequately fulfill the implications of Harlow. Of course court-ordered replies and motions for a more definite statement under Rule 12(e) may simplify and speed the process, but we do not see that protection of substantive rights requires any special rules.

We note briefly the argument of the American Civil Liberties Union as amicus, drawing on the recent decision in Johnson v. Jones, — U.S.-, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). In Mitchell v. Forsyth the Supreme Court applied the “collateral order” doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), to hold that immediate appeal was available for “denial of a defendant’s motion for dismissal or summary judgment on the ground of qualified immunity.” 472 U.S. at 527, 105 S.Ct. at 2816. In Johnson the Court expressly limited Mitchell to pure issues of law, id. at-, 115 S.Ct. at 2156, such as the determination that a set of given facts constituted a violation of clearly established law, id. at -, 115 S.Ct. at 2159. This made clear that appeals from denials of summary judgment were not available for questions of evidentiary sufficiency. Id. at -, 115 S.Ct. at 2156; see also Behrens v. Pelletier, — U.S.-,-, 116 S.Ct. 884, 842, 183 L.Ed.2d 773 (1996) (explicating Johnson). The Court was especially concerned that allowing interlocutory appeals of factual questions about intent “may require reading a vast pretrial record, with numerous conflicting affidavits, depositions and other discovery materials” and would result in unjustifiable delay for the plaintiff. Johnson, — U.S. at-, 115 S.Ct. at 2158.

The ACLU argues that Johnson concluded that where a dispute about material facts exists in a constitutional tort case, “the goal of shielding defendants from discovery or trial yields to the usual goals of resolving cases on their merits through normal procedures.” But Johnson is not remotely so sweeping. As the Court observed in Beh-rens, “Every denial of summary judgment ultimately rests upon a determination that there are controverted issues of material fact.” — U.S. at -, 116 S.Ct. at 842. The question for purposes of immediate ap-pealability is whether the point at issue is mere sufficiency of the evidence or “more abstract issues of law.” Johnson, — U.S. at -, 115 S.Ct. at 2158; Behrens, — U.S. at -, 116 S.Ct. at 842. The Court never addressed (or even hinted at) any adjustment in the summary judgment standards for constitutional torts involving improper motive under Harlow. Indeed, no court of appeals thus far has abandoned its special standards in constitutional motive cases in light of Johnson. See, e.g., Moore v. Valder, 65 F.3d 189, 195, 196 & n. 13 (D.C.Cir.1995); Morin v. Caire, 77 F.3d 116, 121 (5th Cir.1996); Veney v. Hogan, 70 F.3d 917, 922 (6th Cir.1995); Hervey v. Estes, 65 F.3d 784, 788-89 (9th Cir.1995); Gehl Group v. Koby, 63 F.3d 1528, 1535 (10th Cir.1995). And, of course, this court recognized the distinction drawn in Johnson before that case was decided, see Crawford-El v. Britton, 951 F.2d at 1317 (no immediate review available for district court’s treatment of an “I didn’t do it” defense on summary judgment); see also Johnson, — U.S. at -, 115 S.Ct. at 2154 (listing Crawford-El among the decisions on the side that Johnson found correct), yet nonetheless applied special standards. More generally, so far as we know, most if not all trial court proceedings over claims requiring clear and convincing proof plod along without any application of the collateral order doctrine. Limits on the reach of that doctrine of course mean delay in the correction of trial court error and a resulting increased exposure of officials to some adverse consequences, but we do not see why every fine-tuning that limits the immediacy of appeal should connote some anti-defendant shift in the principles to be applied by the district court.⁹

Application to Crawford-El

As we have seen, the district court dismissed Crawford-El’s Fourth Amended Complaint under the “heightened pleading” requirement. If dismissal of the complaint were the sole means available to protect defendants from discovery barred by Harlow, then we would confront the issue of whether Rule 8’s minimalist standard (“a short and plain statement of the grounds”) could be applied to the sort of complaints here at issue without violating 28 U.S.C. § 2072(b)’s ban on the exercise of rulemaking power to “abridge, enlarge or modify any substantive right.” See Leatherman v. Tarrant Co. Narcotics Intelligence & Coordination Unit, 507 U.S. at 166-67, 113 S.Ct. at 1162-63 (leaving open question of whether courts are to apply “heightened pleading” requirement to claims against government officials). But we see no reason why the government officials’ insulation from discovery would not be amply protected by the principle we have already described, entitling officials to summary judgment resolution of their qualified immunity claims before discovery. That being so, it is unclear how application of conventional pleading standards could amount to the sort of substantive abridgement forbidden by § 2072(b). Accordingly, we think it was not correct for the district court to apply, literally, a heightened pleading standard, quite apart from the invalidity of our now-abandoned direct evidence rule.

Quite obviously, however, the court and the litigants have been caught in a vortex of changing standards. And although the defendants have not moved for summary judgment since the filing of the Fourth Amended Complaint, it seems sure that they will do so. Moreover, plaintiff has been on notice at least since our 1991 decision of the need for “nonconclusory allegations that are sufficiently precise to put defendants on notice of the nature of the claim and enable them to prepare a response and, where appropriate, a summary judgment motion on qualified immunity grounds.” Crawford-El, 951 F.2d at 1317 (quotations and citations omitted). Accordingly, it seems overwhelmingly likely that the Fourth Amended Complaint represents at least a very close approximation of what Crawford-El can advance in resistance to the motion for summary judgment. In the unusual context of this case, then, we are hardly giving an advisory opinion when we consider whether affidavits embodying the assertions of the Fourth Amended Complaint could successfully withstand Britton’s motion for summary judgment, backed by the affidavit she has already filed.

1. Whether Crawford-El Has Alleged a First Amendment Violation. We first examine whether Crawford-El’s allegations could possibly constitute a violation of a clearly established constitutional right. See Siegert, 500 U.S. at 227, 111 S.Ct. at 1791 (question whether the conduct complained of constitutes violation of clearly established law is at an “analytically earlier stage” than question of heightened pleading standard); see also Kartseva v. Dep’t of State, 37 F.3d 1524, 1530 (D.C.Cir.1994) (same); Moore v. Valder, 65 F.3d at 195 (same). Although the question is close, we hold that withholding Crawford-El’s property in retaliation for exercise of his First Amendment speech rights would indeed be a violation of clearly established law.

We must answer two questions here: (1) whether Crawford-El’s speech was protected under the First Amendment such that retaliation would be violation of a clearly established right and (2) how great the retaliatory injury must be. We start with the first. The Supreme Court’s decision in Turner v. Safley, 482 U.S. 78, 88,107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987), summarized existing precedent—including Procunier v. Martinez, 416 U.S. 396, 413-14, 94 S.Ct. 1800, 1811-12, 40 L.Ed.2d 224 (1974), and Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974)—and set out the test controlling here: “[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Although on its face Turner applies only to regulations, several other courts have applied the test to other prison actions, including those in retaliation cases. Frazier v. Dubois, 922 F.2d 560, 562 (10th Cir.1990) (applying Turner in a First Amendment retaliation case); Jackson v. Cain, 864 F.2d 1235, 1248 (5th Cir.1989) (same); cf. Cornell v. Woods, 69 F.3d 1383, 1388 (8th Cir.1995) (in First Amendment retaliation case, applying Pell v. Procunier, 417 U.S. at 822, 94 S.Ct. at 2804 (“[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.”)). Several cases have held that a prisoner’s right to have access to the press may be limited. Pell v. Procunier, 417 U.S. at 835, 94 S.Ct. at 2810 (upholding prison regulation prohibiting face-to-face media interviews with particular inmates designated by the press); Kimberlin, 6 F.3d at 791 n. 6 (upholding under Turner warden’s policy prohibiting prisoner press conferences and limiting prisoners’ press access to settings expressly authorized under prison regulations). But no court has held that a total ban on communications to the press passes muster. Cf. Nolan v. Fitzpatrick, 451 F.2d 545, 547 (1st Cir.1971) (striking down ban on prisoner letters to news media insofar as the letters concerned prison matters; emphasizing that prison conditions are “an important matter of public policy” about which prisoners are “peculiarly knowledgeable”). And in light of Turner and related cases, retaliation against Crawford-El for criticism of the prison administration that was truthful, and not otherwise offensive to some penological interest (so far as appears), would have violated a clearly established right of which a reasonable prison official would have known. Cf. Pickering v. Bd. of Educ., 391 U.S. 563, 568, 571-72, 88 S.Ct. 1731, 1736-37, 20 L.Ed.2d 811 (1968) (holding that First Amendment precludes dismissal of a school teacher who criticized Board of Education’s handling of a bond issue; public employees should be able to speak freely on issues of public concern without fear of retaliation).

As to the sort of injury cognizable under the First Amendment, Crawford-El here alleges the costs of replacing underwear, tennis shoes, soft shoes, and other items; shipping charges to get his papers back; and mental and emotional distress. In our earlier opinion in this case, we noted that some non-de minimis showing of injury is necessary in a constitutional tort action, 951 F.2d at 1321, 1322, and cited Ingraham v. Wright, 430 U.S. 651, 674, 97 S.Ct. 1401, 1414, 51 L.Ed.2d 711 (1977) (“There is, of course, a de minimis level of imposition with which the Constitution is not concerned.”), and Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982). Bart stated that “even in the field of constitutional torts de minimis non curat lex.” Id. “It would trivialize the First Amendment to hold that harassment for exercising the right of free speech was always actionable no matter how unlikely to deter a person of ordinary firmness from that exercise” — for example, a supervisor frowning at an employee in retaliation would not constitute sufficient injury. Id. Still, the effect on freedom of speech of retaliations “need not be great in order to be actionable.” Id.; cf. Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 306-311, 106 S.Ct. 2537, 2542-45, 91 L.Ed.2d 249 (1986) (out-of-pocket and mental distress damages recoverable for violation of Due Process Clause and First Amendment right to academic freedom); Hobson v. Wilson, 737 F.2d at 61-62 (mental distress damages recoverable for violation of First Amendment right of political association); Frazier v. Dubois, 922 F.2d at 561 (transfer of prisoner in retaliation for exercise of First Amendment rights is unconstitutional injury; citing cases).

The district court commendably latched onto our approval of Bart and applied a sensible standard — whether an official’s acts “would chill or silence a ‘person of ordinary firmness’ from future First Amendment activities.” 844 F.Supp. at 801 (quoting Bart). The court then found that the pecuniary losses Crawford-El sustained in the form of the costs of shipping his boxes and replacing clothing, though small, might well deter a person of ordinary firmness in Crawford-El’s position from speaking again. We agree that the acts asserted pass that test.

2. Whether a Jury Could Reasonably Find Clear and Convincing Evidence of Retaliatory Action. The Fourth Amended Complaint alleges a variety of encounters between Crawford-El and Britton from which plaintiff believes it can be inferred that the misdelivery of his goods must have been in retaliation for various activities that are protected by the First Amendment.

Crawford-El sets the stage with allegations that Britton was hostile to him because of his actions on behalf of fellow prisoners even before his contacts with the press. While he was Clerk for the Occoquan Facility Housing and Adjustment Board at Lorton (from about October 1985 to April 1986), he had frequent contact with Britton since she often served on that Board and Crawford-El often went to the nearby block containing Britton’s office to photocopy. He claims that Britton, while despising all prisoners, was particularly hostile to him because he had been in charge of the law library when housed at the central facility at Lorton and had helped many prisoners prepare administrative grievances. According to Crawford-El, Britton deemed him “too big for his britches.”

In April 1986 Crawford-El apparently invited reporters from the Washington Post to visit the prison, correctly noting on the visitor application form submitted to Britton that the proposed visitors’ address was 1150 15th Street, NW, Washington, DC 20071, but discreetly omitting that this was the Post’s address. Britton approved the application. A reporter came, and on April 20, 1986 the Post published a front-page article under the headline “Jail Crisis Spills Into Occoquan Unit,” subheaded “Crowding, Anger Grow as D.C. Inmates are Shifted to Ya. Facility.” It quoted Crawford-El’s account of an alleged irregularity — that on his arrival at Occoquan a correctional officer had obtained trousers for him by searching in other prisoners’ lockers for an extra pair. The next day, says Crawford-El, Britton called him into her office and told him he had “tricked” her and that “so long as [Crawford-El] was incarcerated she was going to do everything she had to to make it as hard for him as possible.”

Between April 1986 and Crawford-El’s next successful use of the press, he brought a variety of lawsuits against the District. In one, for property allegedly lost through prison officials’ negligence, he recovered about $500; in three others he complained on behalf of himself and a class about the lack of food compatible with prisoners’ Islamic beliefs, alleged interference with his religious beliefs, and sued, curiously, “for legal malpractice.” In December 1988, while the suits were pending, he and a group of other prisoners were transferred to the Spokane County Jail. While assembled for the trip in shackles, the prisoners were videotaped. Plaintiff says that he and others protested the videotaping as a violation of their privacy rights, to which Britton responded, “You’re a prisoner, you don’t have any rights.”

Shortly after arrival at Spokane, Crawford-El again spoke with a reporter from the Post. On December 18, 1988, another front-page article appeared, “Sudden Move Severs Inmates’ Ties to D.C.; Isolation of Spokane County Jail Puts Prisoners ‘In a Firecracker Mood.’” It credited Crawford-El with the firecracker metaphor and also quoted him as claiming that the prisoners sent to Spokane were “the civil litigants of Lorton who have been put here to get us out of their hair so our lawsuits will be dismissed on procedural grounds.” Shortly after the publication of this article, according to Crawford-El, Brit-ton told a Spokane County Jail official that Crawford-El was “a legal troublemaker,” meaning, according to the complaint, “a prisoner who asserts her or his legal rights, or seeks administrative or judicial redress of grievances.” As we noted before, “even prison officials free of hostility toward Crawford-El might regard ‘troublemaker’ as an apt moniker.” Crawford-El, 951 F.2d at 1319.

The alleged retaliatory act — the misdeliv-ery of boxes — occurred in the course of Crawford-El’s transfer back from Spokane to Lorton and thence on to a federal prison in Marianna, Florida, a transfer over which Britton had charge. At Spokane, Crawford-El was instructed to give his property to officials there for forwarding to him. Crawford-El alleges Britton was aware of the boxes’ importance to him, saying that when he and two other prisoners met Britton on August 18, 1989 at the Western Missouri Correctional Center en route back to Lorton, they told her that their boxes contained legal papers needed for ongoing cases. She allegedly said that she understood Crawford-El’s need for the personal property and legal materials and that the boxes would be sent to her office.¹⁰ (In her affidavit Britton contests the claim that she was ever told of the papers: “I do not recall plaintiff telling me that there were legal documents in his personal property, nor did I have knowledge of the contents of the three sealed boxes.” She said she had the boxes sent to her office to keep them from being lost.)

In late August, after arriving back at Lor-ton, Crawford-El allegedly wrote to Britton requesting that his property be sent to him as soon as she received it. Shortly afterward, he noticed that some other prisoners returning from Washington State had got their property. Just before he was transferred, he checked with a Lorton “Property Officer” named Ward, who told him that he could have his property sent to him at his final destination by writing a request to that effect after arrival at that final destination. At still another intermediate stop, the federal prison in Petersburg, Virginia, Crawford-El learned from other D.C. prisoners that Brit-ton had been calling their families asking them to pick up the prisoners’ property because otherwise she would throw it away. He called his parents, who told him his brother-in-law Jesse Carter had picked up his boxes. (Crawford-El was “upset” at this, since he believed he would have difficulty getting permission to receive the property once it had left the prison system.) According to Crawford-El’s own allegation in the Fourth Amended Complaint, Carter told Crawford-El that Britton had told him that she was concerned about Crawford-El’s legal materials and other property and was afraid the boxes would be lost if she sent them to the Lorton Property Officer for mailing to Crawford-El, and that federal prisons would not accept shipments of D.C. prisoner property. That account meshes with Britton’s affidavit, which says that she asked Carter to take Crawford-El’s property “only to insure its safety and protection from loss, and for no other reason whatsoever.” (Britton also stated, that “we had been advised by the Federal Bureau of Prisons that they would not accept the personal property of the prisoners.”) But Crawford-El also says that Britton told Carter that Crawford-El “should be happy she did not throw [his property] in the trash.”

In the course of Crawford-El’s attempts to get his property back, his lawyer received a copy of a letter from the Corporation Counsel’s office, stating:

As has been our past practice, inmates transferring from DCDOC [the D.C. Department of Corrections] to BOP [the federal Bureau of Prisons] custody are permitted only a small amount of personal property which should be limited to personal care items and legal documents.

The letter also said that there were “significant differences among DCDOC and BOP property policies and differences between individual BOP facilities” and noted that “[i]n special cases, we ask that DCDOC contact individual facility Inmate Systems staff for permission prior to mailing any inmate personal property to a BOP facility.” Though Crawford-El’s mother forwarded the boxes on to him at the prison at Marianna, Florida, Crawford-El had some difficulty getting them, as he had expected. Crawford-El asserts that this was because they arrived outside prison channels.

The allegations supplying the strongest evidence of Britton’s alleged malign intent are her threat to Crawford-El after the 1986 Post article to make things “as hard as possible for him” and her remark to Carter about throwing the boxes in the trash. But those comments — for both of which Crawford-El is the only source mentioned — are suspect as self-serving assertions. The complaint undermines the “trash” comment by affirmatively asserting that Carter said Britton told him she was giving him the property out of concern about its getting lost, an account that Britton’s affidavit supports. As for the allegation that Britton told a Spokane County Jail official that Crawford-El was “a legal troublemaker,” the complaint itself defines that term in such a way as to make it impossible to deny that the description is apt. The letter by Corporation Counsel on its face suggests some confusion about the federal Bureau of Prisons policy concerning transfer of D.C. inmate’s personal property, reducing the likelihood that Britton’s handing the property to his brother-in-law was a deliberate scheme to keep it away from Crawford-El. Indeed, in the absence of some reason to believe Britton thought Carter had it in for Crawford-El or was hopelessly incompetent (neither of which is claimed by Crawford-El), or thought that federal prison officials would much more readily allow Crawford-El to receive the property if sent by the D.C. Department of Corrections than if sent from outside the prison system, transfer of the boxes to the brother-in-law makes an awkward fit with any serious purpose to keep them from Crawford-El. In addition,Crawford-El’s own complaint states that Britton had telephoned other D.C. prisoners’ families to ask them to pick up those prisoners’ property at Lorton' — behavior further reducing the chance that Britton’s treatment of Crawford-El had any retaliatory purpose. In short, a jury could not reasonably find that Crawford’s nonconclusory assertions constitute clear and convincing evidence of unconstitutional intent. On remand, Crawford-El may attempt to bolster his evidence — perhaps in part through discoveiy, if by amplifying his independent assertions he secures district court permission to conduct discovery pursuant to Judge Ginsburg’s separate opinion, which is controlling on these issues as the opinion consistent with the disposition on the narrowest grounds, i.e., a “common denominator” of the reasoning of the majority, see King v. Palmer, 950 F.2d 771, 780-81 (D.C.Cir.1991) (en banc). If he adds no evidence, the district court should grant any future motion for summary judgment by Britton on the federal claims against her. * * *

Accordingly we vacate the dismissal of Crawford-El’s First Amendment retaliation claim against Britton, and the pendent conversion claim (see supra note 1), and, once the panel has resolved the issues between Crawford-El and the District (see id.), remand the case to the district court for further proceedings.

So ordered.

1 . Our order for rehearing en banc relates only to the qualified immunity raised by plaintiff’s action against Britton. But the District of Columbia is, as noted in the text, still in the case. The district court had dismissed it as a defendant, but since in his successive amended complaints Crawford-E1 repeatedly named the District as a defendant and the District did not object, the district court held that the District had waived a law-of-the-case argument and therefore reinstated it as defendant. Crawford-El v. Britton, 844 F.Supp. 795, 795 n.l (D.D.C.1994). Because Crawford-El's claims against the District do not concern the questions for which we granted rehearing en banc, they are to be resolved by the panel.

Another extant part of the complaint is a pendant District law claim for conversion of Crawford-El's properly. The survival of this claim (in the federal courts) turns on whether, after the remand ordered here, there is any federal claim to which it may be appended.

2 . The qualified immunity defense is unavailable for ministerial acts, see Harlow, 457 U.S. at 816, 102 S.Ct. at 2737; see also Davis v. Scherer, 468 U.S. 183, 196 n. 14, 104 S.Ct. 3012, 3020 n. 14, 82 L.Ed.2d 139 (1984), and unnecessary for acts for which the officer enjoys absolute immunity, see Harlow, 457 U.S. at 807, 102 S.Ct. at 2732.

3 . Then-Judge Ginsburg later observed that in Martin the court had "cut back allowable discovery severely, permitting only a sharply limited, precisely defined line of inquiry, and even then, only because of special exigencies in the particular case.” Bartlett v. Bowen, 824 F.2d 1240, 1245 (D.C.Cir.1987) (R.B. Ginsburg, J., concurring in denial of rehearing en banc in Martin and several other cases).

4 . Thus, unlike Judge Edwards, see Edwards Op. at 850-51, we do not see any schism in the Seventh Circuit, between Elliott's requirement that plaintiff himself supply evidence of defendant’s illicit motivation in order to withstand defendant’s summary judgment motion, 937 F.2d at 345, and Billman's allowing plaintiff discovery to develop evidence that defendant was aware of facts that would, if known to defendant, render his conduct violative of the 8th Amendment.

5 . Judge Edwards is correct that neither the Solicitor General nor the government defendants advocated the "clear and convincing’’ standard, see Edwards Op. at 852, but the difference between that and what the Solicitor General did advocate appears to be mainly that his proposed standard is formulated in language that has much less experience and tradition behind it.

6 . The "strong inference” standard is used by the Second Circuit in securities fraud cases under Fed.R.Civ.P. 9(b). See, e.g., Acito v. IMCERA Group, 47 F.3d 47, 52 (2d Cir.1995); Shields v. Citytrust Bancorp, 25 F.3d 1124, 1127-28 (2d Cir.1994).

7 . Of course, many plaintiffs in civil rights actions against public officials know that their chances of success on the merits are minimal and may be motivated by purposes other than achieving that success. The tilt makes it easier for district judges to end such cases quickly, thereby reducing the burdens on the defendant and the court that concerned the Court in Harlow.

8 . Once the plaintiff has come forward with evidence that a jury could regard as clear and convincing proof of the defendant’s unconstitutional motive, his access to discovery on all issues (including motive) would be, in the view of the judges in the plurality, a matter for the district court to determine as in ordinary civil litigation. In other words, although the plaintiff would get no discovery unless he had in hand evidence that would support a jury finding in his favor on the motive issue, if he did have that evidence he could use discovery to obtain additional evidence that might help him win the battle of persuasion at trial.

9 . Judge Edwards accuses the plurality of insufficient “judicial restraint,” Edwards Op. at 853, but it is not clear by what standard one resolution of a question unanswered by Harlow is more or less "restrained” than another. Nor is it clear why one should view a book review by a member of the plurality, see id., suggesting that courts take a modest role in monitoring the judgments of the political branches, as contradicting an opinion whose tendency (among the various plausible alternatives) is to do exactly that.

10 . On the trip back to Lorton, supervised by Britton, the property Crawford-El was carrying with him (and that of other prisoners as well) was put into storage on the bus and apparently lost. Crawford-El won an uncontested small claims court suit against Britton for $72.50 based on this loss.