you mean i can be sued? - department of justice

Civil

YouMean I Can Be Sued? An Overview of Defending FederalEmployees in Individual Capacity Civil Suits . . . . . . . . . . . . . 1

By Mary Hampton Mason

Asserting Qualified Immunity and Avoiding Discovery:Thoughts on Motions Practice and Discovery . . . . . . . . . . . . 6

By Richard Montague

Defending Failed Prosecutions Actions . . . . . . . . . . . . . . . . 13By Kristy L. Parker

Surgical Use of Daubert in the Defense of Medical MalpracticeActions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

By Mary McElroy Leach

Recent Development: An Argument that Fed. R. Civ. P. 45 DoesNot Authorize Nonparty Subpoenas to the Federal Government24

By Terry Henry

The Employment Discrimination Task Force . . . . . . . . . . . . 28By Richard G. Lepley

July 2002Volume 50Number 4

United StatesDepartment of Justice

Executive Office forUnited States AttorneysOffice of Legal Education

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In This Issue

JULY 2002 UNITED STATES ATTORNEYS' BUL LET IN 1

You Mean I Can Be Sued? AnOverview of Defending FederalEmployees in Individual CapacityCivil SuitsMary Hampton MasonTrial AttorneyConstitutional and Specialized Torts SectionCivil Division

I. Introduction

When a process server arrives at their home,many federal employees are surprised to learn forthe first time that they can be personally sued fordoing their jobs. They are even more surprised tolearn that the Federal Government does notautomatically defend cases arising fromemployment-related actions, nor does theiremploying agency necessarily indemnify them inthe event the case is lost – even if the agencybelieves that no wrongdoing occurred. Althoughpersonal capacity civil suits against federalemployees arise in all agencies and from all typesof activity, suits against law enforcement officersare perhaps most familiar to governmentattorneys. Plaintiffs, moreover, challengegovernmental conduct at all levels of authority,from the President of the United States to afederal court file clerk. In addition, suits namingAssistant United States Attorneys and othergovernment counsel are not uncommon.

When a federal employee is named in anindividual capacity, that employee is the target ofthe lawsuit. Recovery is sought from theemployee's personal assets rather than from theUnited States. Although these cases are oftenreferred to as "Bivens" actions, they are frequentlybased on alleged violations of federal statutes orstate law, as well as federal constitutionalprovisions. See Bivens v. Six Unknown Agents ofthe Fed. Bureau of Narcotics, 403 U.S. 388(1971). Pursuant to 28 U.S.C. §§ 516-519, theAttorney General is responsible for attending tothe interests of the United States in litigation. TheJustice Department has long recognized that it isin the United States' interest to defend thepropriety of governmental action and to protectthe morale (and, indeed, solvency) of both itscurrent and former employees by defending suits

arising from actions taken within the scope offederal employment.

In most cases, the authorization of personalcapacity representation is the responsibility of theConstitutional Torts Section of the Department ofJustice's Civil Division. The Constitutional TortsStaff handles a number of cases directly. Inaddition to its primary cases, the Civil Divisionmonitors certain cases of national interest.However, the vast majority of federal employeesfacing damages liability are defended by theoffice of the United States Attorney in the districtin which suit is filed. Of course, whether a case ismonitored or delegated, the Constitutional TortsStaff is always available to discuss issues thatarise in defending federal employees. SeeParagraph VI. (A). In addition, the Torts Branchhas prepared an extensive Monograph, referencedherein, on defending individual capacity claims.Information on that Monograph is provided at theend of this article. The following discussionhighlights some of the unique aspects ofdefending federal employees in civil damageactions. This edition of the USA BUL LETIN alsocontains an article on various considerations inaddressing the doctrine of qualified immunitythrough motion practice, and an article onemerging issues in individual capacity casesarising out of failed criminal prosecutions.

2 UNITED STATES ATTORNEY 'S BUL LET IN JULY 2002

II. The representation process

Of course, a case typically begins when theplaintiff files suit either in state or federal court.See TORTS SECTION, DEP’T OF JUSTICE, TORTS

BRANCH MONOGRAPH , SECTION D, REMOVING

THE PERSONAL CAPACITY SUIT (discussingwhether and when cases filed in state court can beremoved to an appropriate federal forum). Wherea federal employee, rather than the United States,is the named defendant, individual capacityrepresentation must first be authorized by theDepartment of Justice in accordance with theregulations found at 28 C.F.R. §§ 50.15-50.16.Representation will be authorized where theemployee acted in the scope of his federalemployment and representation is otherwise in theinterest of the United States. 28 C.F.R.§ 50.15(a)(2). Broadly speaking, a representationrequest should contain three categories ofmaterial: (1) the summons, complaint and otherrelevant pleadings; (2) a written request by theemployee seeking representation; and (3) arecommendation by the employing agencyexplaining the scope and interest inquiries as theyrelate to the facts of the particular case. See TORTS

SECTION, DEP’T OF JUSTICE, TORTS BRANCH

MONOGRAPH , SECTION B, REPRESENTATION AND

THE ATTORNEY-CLIENT RELAT ION SHIP.Applicable regulations also require that all"available factual information" necessary to reacha decision accompany that request, which, ofcourse, will vary and must be determined on acase-by-case basis. 28 C.F.R. § 50.15(a)(1).

In the interests of uniformity, the "scope ofemployment" inquiry for purposes of Departmentof Justice representation under Section 50.15,unlike the scope inquiry governing claims againstthe United States under the Federal Tort ClaimsAct, is governed by federal law. Accordingly,while state law may be considered in reaching ascope determination, it is not controlling forrepresentation purposes. Both the employingagency and the United States Attorney's office areinformed by letter once a decision either toauthorize or deny representation is made. Ifrepresentation is authorized, the assigned attorneyshould be familiar with the requirements set out inform DOJ-399, Acknowledgment of Conditions ofDepartment Representation, and maintain a copyof that form signed by the client.

Where time constraints preclude submitting awritten request, representation may be authorizedby telephone by the Constitutional Torts Directoror certain Senior Trial Counsel. This approval isconditional and must be supplemented by a formalwritten request. United States Attorneys have theautomatic authority to request an extension of

time in any case for the limited purpose ofsecuring representation without prior approvalfrom Main Justice. Accordingly, emergencyrequests for conditional representation are theexception rather than the rule.

Seeking conditional representation authorityshould not be confused with Emergency, InterimLegal Representation for Federal LawEnforcement Officials. The Civil Division hasprocedures in place for providing interimrepresentation for federal agents by privatecounsel in federal, state, county, or municipalcriminal proceedings in the immediate aftermathof a shooting or other use of force involvingserious bodily injury. Representation is providedonly on a temporary basis — absent exceptionalcircumstances, for no more than one week —while the Constitutional Torts Staff processes arepresentation request. Moreover, variousconditions may apply. In these critical incidentcases, personnel designated by the involvedagency should contact the designated attorney ofthe Constitutional Torts Staff who will make aninitial determination of scope of employmentbased upon the facts presented by the agency. SeeParagraph VI.

III. The role of governm ent counsel

Defending damages claims against federalemployees who are sued in their individualcapacity differs in significant respects fromhandling civil claims against the United Statesunder the Federal Tort Claims Act. Legalarguments and defense tactics vary greatly andrelations with clients become both more importantand far more burdensome. In addition, a numberof concerns seldom present in more traditionallawsuits involving the United States can play animportant role. Suits threatening personal liabilitynot only distract federal employees from theprincipal duties of their office, but also take apsychological toll and can disrupt the lives ofclients and their families. The litigation may havecollateral consequences, such as hampering theability to secure home mortgages or similarpersonal obligations. Sensitivity to these concerns,as well as to defense counsel's unique role as acounselor and advocate, are areas in which thegovernment lawyer may not be experienced orattuned.

Perhaps the most obvious departure indefending Bivens claims from typical governmentpractice is the availability of defenses that maydispose of the action, where a case on the samefacts against the United States would go to trial.Service of process and personal jurisdictionrequirements vary in suits against individuals, and


the applicable statute of limitations is often not thenormal two years prescribed in 28 U.S.C.§ 2401(b). See TORTS SECTION, DEP'T OF JUSTICE,TORTS BRANCH MONOGRAPH , SECTION E,PRELIMINARY DEFENSES. In some circumstances,motions attacking the specificity of the complaintor other pleading irregularities may be successful,although this must be done with care to avoidreversal on appeal. See TORTS SECTION DEP'T OF

JUSTICE, TORTS BRANCH MONOGRAPH , SECTION

A, PRACTICAL OVERVIEW; TORTS SECTION, DEP'TOF JUSTICE, TORTS BRANCH MONOGRAPH ,SECTION H, QUALIFIED IMMUNITY. In other cases,plaintiff seeks to challenge acts, either asunconstitutional or in violation of various federalstatutes, which simply cannot serve as the basisfor a cognizable claim. See TORTS SECTION, DEP'TOF JUSTICE, TORTS BRANCH MONOGRAPH ,ADDITIONAL DEFENSES (discussing "specialfactors counseling hesitation" that preclude aBivens remedy); TORTS SECTION, DEP'T OF

JUSTICE, TORTS BRANCH MONOGRAPH , FEDERAL

STATUTORY CAUSES OF ACTION (discussingimplied rights of action under federal statutes).Clearly though, the key pretrial defense in tortactions against individual federal officials isimmunity — statutory, qualified, or absolute. SeeTORTS SECTION, DEP'T OF JUSTICE, TORTS

BRANCH MONOGRAPH , SECTION F, ABSOLUTE

IMMUNITY FOR COMMON LAW TORTS: THE

WESTFALL ACT; TORTS SECTION, DEP'T OF

JUSTICE, TORTS BRANCH MONOGRAPH , SECTION

G, OTHER TYPES OF ABSOLUTE IMMUNITY; TORTS

SECTION, DEP'T OF JUSTICE, TORTS BRANCH

MONOGRAPH , SECTION H, QUALIFIED IMMUNITY.

IV. Caveat on ethics

Individual capacity representation of federalemployees can raise thorny ethical issues. SeeTORTS SECTION, DEP'T OF JUSTICE, TORTS

BRANCH MONOGRAPH , SECTION C, ETHICAL

CONSIDERATIONS IN INDIVIDUAL CAPACITY

REPRESENTATION. Once representation isundertaken, Department attorneys undertake a"full and traditional attorney-client relationshipwith respect to the application of the attorney-client privilege." 28 C.F.R. § 50.15(a)(3). Theexistence of an attorney-client relationship has anumber of consequences. For instance, adverseinformation communicated by the employee clientto a Department attorney may not be disclosed toanyone either inside or outside the Department,even if representation is denied or discontinued,unless the employee waives the privilege. Id. Inaddition, and unlike cases in which theUnited States is the sole defendant, the attorney-client relationship does not automatically extendto agency counsel. Rather, the extent to which an

agency attorney undertakes a full and traditionalattorney-client relationship with respect to theattorney-client privilege is determined by theagency employing the attorney. Maintaining anattorney-client relationship imposes practicalburdens as well. Department attorneys mustestablish a file system that separates and identifiesattorney-client material so that it is not reviewedroutinely by others when the case is closed andthe file placed in storage.

Most significantly, in any given case, tensionscan develop between the interests of theUnited States, the interests of the employee client,and even between multiple clients. Regulationsprovide guidance for the resolution of actualconflicts. 28 C.F.R. § 50.15(a)(10). However,their application in a given circumstance may bedifficult. Because it has the potential to effectrepresentation authority, whenever Departmentattorneys discover that raising a position ordefense necessary to the adequate representationof an individual federal defendant is contrary tothe interests of the United States, they mustimmediately consult with the Torts Branch.

The problems inherent in reconciling theseethical tangles are compounded by the so-calledMcDade Amendment, which provides that "[a]nattorney for the Government shall be subject toState laws and rules, and local Federal court rules,governing attorneys in each State where suchattorney engages in that attorney's duties, to thesame extent and in the same manner as otherattorneys in that State." 28 U.S.C. § 530B. It isnot unusual for individual capacity defendants tolive or work in different jurisdictions than oneanother or than the district in which suit is filed.Government counsel then may be bound by theethical constraints of a number of differentjurisdictions in a single case. Therefore, whenethical concerns arise, in addition to contactingthe Torts Branch, attorneys may wish to consulttheir Professional Responsibility Officer or theProfessional Responsibility Advisory Office aswell.

V. Defending your clients in court

In defending Bivens cases, the attorney mustunderstand at the outset what claims the complaintis really trying to assert, against whom, and inwhat capacity. At times this can be a dauntingtask, depending on the draftsmanship of thepleading. As challenging as defending a federalemployee sued in his individual capacity can be,filing a cognizable claim is at least as complex,not only for pro se litigants, but for seasonedplaintiffs' counsel as well. Many complaintsjumble personal and official capacity claims and


confuse the source of the substantive right forwhich they seek redress. If the complaint can beread in any way to expose an individual defendantto liability, the matter should be treated as apersonal capacity lawsuit. In other words, unless itis clear that damages are only sought from theUnited States under the FTCA, assume thatpersonal exposure is a risk and take all measuresnecessary to protect the individual interests of thenamed defendants.

Traditionally, personal capacity suits againstfederal officers were almost universally resolvedon motion. In recent years, however, while theSupreme Court has narrowed the types of Bivenscases it is permissible to bring, those complaintsthat allege a valid cause of action are less likely tobe disposed of on early motion. See CorrectionalServices Corp. v. Malesko, 534 U.S. 61 (2001)(outlining some of the limits on implied rights ofaction challenging the allegedly unconstitutionalconduct of federal officials); Crawford-El v.Britton, 523 U.S. 574 (1998)(discussing pleadingrequirements in constitutional tort cases). Thesecases proceed into discovery, and notinfrequently, to trial. At the outset then,determining whether or not your case is likely tobe resolved on a preliminary motion is important.One good indicator that a case may be susceptibleto a motion to dismiss or prediscovery motion forsummary judgment, is where plaintiff challengessome broad, systemic action by the United Statesthat is not really attributable to an individual ordiscrete group of government actors. For instance,challenges to the implementation of federalprograms like Social Security or Medicare, orsuits that target the taxation regulation role ofgovernment officials, are often good candidatesfor dismissal on a preliminary motion. On theother hand, cases alleging excessive force or other"hands-on" encounters between governmentactors and the citizenry may be somewhat lesslikely to be disposed of by a motion to dismiss.

Regardless of the likelihood of earlydismissal, the fact that the case involvesindividual rather than governmental defendantsshould be an operating theme throughout thelitigation. This point can be made in both directand subtle ways. For instance, although there arerare cases in which filing a single pleading onbehalf of the United States and any individualdefendants may be the strategy of choice, filingseparate pleadings is generally preferred. In fact,circumstances may dictate that a separate pleadingbe filed on behalf of any individual with uniquedefenses, or on behalf of classes of individuals,such as supervisors and subordinates, who havecommon defenses.

Filing separate papers will immediately alertthe judge to the fact that, although it is beingdefended by a "government" attorney, this case isdifferent. Nonetheless, getting the court to reallyappreciate that difference is perhaps one of themost formidable challenges that governmentlawyers face in defending their fellow federalemployees. Understanding the distinction betweenindividual and official capacity suits is notacademic. It has a number of significantconsequences, both legal and practical. Amongthem, plaintiffs are entitled to a jury trial, and, iftheir suit is successful, they may collect punitivedamages from the individual federal officer. Inorder to protect the substance of the individualfederal employee's immunity defense, governmentcounsel may also need to move immediately tosuspend preliminary disclosures under FED. R.CIV. P. 26 or other discovery obligations. Once acase is in discovery, the production of documentsand the assertion of governmental privileges maybe complicated by the fact that the United Statesis not a defendant to the action.

The import of defending these cases, both tothe individual as well as to the overalleffectiveness of government functions, cannot beoverstated. We have seen constitutional tort suitsfiled against federal employees in everysignificant law enforcement mission in recentmemory, including the seizure of the BranchDavidian compound in Waco, Texas, the stand-offat Ruby Ridge, and now the investigation ofterrorist activities in the wake of 9/11. Evenpersonal capacity litigation challenging moreinnocuous government action drains theUnited States' fiscal and other resources, and sapsthe time and energies of the federal workforce.Yet, whether particular cases are of nationalimportance or have more limited reach, each hasvital significance to the lives of the individualclients we represent. Ultimately, providingeffective and compassionate counsel to coworkerssued for doing their job can be one of the mostrewarding of the many "hats" that governmentattorneys wear.

VI. References

A. The office's main number is (202) 616-4140. The facsimile number is (202) 616-4314.To find out the attorney assigned to an individualcase within the Constitutional Tort Section, youmay call case control officer Mildred Carroll at(202) 616-4327.

B. The Torts Branch contact forEmergency, Interim Legal Representation forFederal Law Enforcem ent Officials is SalD'Alessio (Sal.D'[email protected]). Mr.


D'Alessio may be contacted at his office, (202)616-4168, by cellular telephone, (202) 353-5329or by pager (800) 759-8888 [PIN 1742555]. Thiscontact information is to be used solely forauthorizing representation in critical incidents.

C. To further assist AUSAs defendingfederal employees against individual capacityclaims, a Torts Branch Monograph is available inthe DOJBRIEFS database of WESTLAW and on-line at USABook,http://10.173.2.12/usao/eousa/ole/usabook/liab/index.htm. That Monograph contains the followingchapters:

Chapter A - Practical Overview: Defendingthe Individual Capacity Claim

Chapter B - Representation and the AttorneyClient Relationship

Chapter C -Ethical Considerations inIndividual Capacity Representation

Chapter D- Removing the Personal LiabilityCase

Chapter E - Preliminary Defenses: PersonalJurisdiction, Venue, Service and Timeliness

Chapter F - Absolute Immunity for CommonLaw Torts: The Westfall Act

Chapter G - Other Types of AbsoluteImmunity

Chapter H - Qualified Immunity

Chapter I - Additional Defenses

Chapter J - Federal Statutory Causes ofAction

Chapter K - Trial and Damages

Chapter L - Appellate Issues and InterlocutoryAppeal�

ABOUT THE AUTHOR

�Ms. Mason is a Trial Attorney with theConstitutional and Specialized Tort Section of theUnited States Department of Justice. When shebegan with the Department in 1990, Ms. Masonhandled litigation and supervised attorneys underthe National Vaccine Injury CompensationProgram — one of Congress's most sweepingattempts at nationalizing tort reform. For the lastsix years, Ms. Mason has practiced exclusively inthe constitutional tort arena. She has been the leadattorney in a number of high profile Bivens cases,including civil suits arising out of the Olympicbombing in Atlanta, Georgia, as well as thetransborder arrest of M exican doctor Humberto

Alvarez-Machain, charged with the torture andmurder of DEA Agent Enrique Camarena.

Ms. Mason can be reached by e-mail [email protected], or by telephone at (202)616-4123.a


Asserting Qualified Immunity AndAvoiding Discovery: Thoughts onMotions Practice and DiscoveryRichard MontagueTrial AttorneyTorts Branch, Civil Division

I. Introduction

Qualified immunity from suit under Harlow v.Fitzgerald, 457 U.S. 800 (1982), is the principaldefense of government officials sued in theirindividual capacities. Although a personaldefense, immunity is grounded in importantpublic policy considerations. Quoting LearnedHand's opinion in Gregoire v. Biddle, 177 F.2d579, 581 (2d Cir. 1949), the Supreme Court inHarlow emphasized that "it cannot be disputedseriously that claims frequently run against theinnocent as well as the guilty – at a cost not onlyto the defendant officials, but to society as awhole." Harlow, 457 U.S. at 814 (footnoteomitted). In addition to the general costs ofpersonal liability litigation, which the Harlowcourt identified as the distraction of publicofficials from their duties, and the concern that theprospects of personal liability will deter ablepeople from serving in government as well as "thedanger that fear of being sued will 'dampen theardor of all but the most resolute, or the mostirresponsible [public officials], in the unflinchingdischarge of their duties,'" id., (quoting Gregoire,177 F.2d at 581), there are also special costs topermitting discovery into discretionarygovernment decision making. See Harlow, 457U.S. at 816. "Inquiries of this kind," the Courtobserved, "can be peculiarly disruptive ofeffective government." Id. at 817 (footnoteomitted).

The Harlow court responded to this problemin two ways. First, it reformulated the qualifiedimmunity defense along wholly objective linessuch that "government officials performingdiscretionary functions, generally are shieldedfrom liability for civil damages insofar as theirconduct does not violate clearly establishedstatutory or constitutional rights of which areasonable person would have known." Id. at 818(citation omitted). Second, the Court admonishedthat "[u]ntil this threshold immunity question isresolved, discovery should not be allowed." Id.

The problem for practitioners defendingconstitutional tort cases is effectively assertingthis "immunity from suit," see Mitchell v. Forsyth ,472 U.S. 511, 516 (1985), in a way that terminatesthe case with little or no discovery. The twodecades since Harlow have shown that matters arenot nearly so simple as Harlow would seem toimply. Of present interest is the importantcorollary to Harlow's "objective legalreasonableness" test under which immunityquestions must be resolved by reference to theparticular facts and circumstances confronting thedefendant at the time he acted. See Anderson v.Creighton, 483 U.S. 635, 640-41 (1987). In otherwords, plaintiffs cannot overcome the defense"simply by alleging extremely abstract rights." Id.at 639. This more particularized level of analysisis essential lest Harlow "be transformed from aguarantee of immunity into a rule of pleading." Id.Yet almost paradoxically, this important corollaryto Harlow also has the potential to trigger the verydiscovery Harlow sought to avoid.

II. Substantive specificity versus proceduralgenerality – the problem of pleading standards

That the Harlow rule operates at aparticularized level of description is good newsfor defendants in the sense that plaintiffs may notprevail merely by invoking legal abstractions. Thebad news is that the plaintiff, who must show aviolation of clearly established law in a factuallyparticularized sense, perhaps can lay a strongerclaim to discovery for that purpose. Cf. Anderson,483 U.S. at 646 n.6 (explaining that where thecomplaint alleges a violation of clearly establishedlaw, but the defendant claims he engaged indifferent conduct not violating clearly establishedlaw, the plaintiff is entitled to some discovery onthe immunity issue).

Although Anderson says that the substantiverule of qualified immunity is not a mere pleadingrule (and therefore requires a factually specificlevel of analysis), Federal Rule of Civil Procedure8(a)(2)'s notice pleading standard, by contrast,"do[es] not require a claimant to set out in detailthe facts upon which he bases his claim." Conleyv. Gibson, 355 U.S. 41, 47 (1957). Instead, thepleader need only provide "a short and plainstatement of the claim showing that the pleader is


entitled to relief." FED. R. CIV. P. 8(a)(2). Thisstandard "presumes that general allegationsembrace those specific facts that are necessary tosupport the claim." Lujan v. Nat’l Wildlife Fed'n ,497 U.S. 871, 889 (1990) (citing Conley, 355 U.S.at 44-45 ). Rule 8(a)(2) thus requires of pleadersonly that they give the opposing party "fair noticeof the nature and basis or grounds of the claim anda general indication of the type of litigationinvolved; the discovery process bears the burdenof filling in the details." 5 CHARLES ALAN

WRIGHT & ARTHUR R. M ILLER, FEDERAL

PRACTICE AND PROCEDURE, § 1215, at 1 (Supp.2002).

Here then lies the tension between thesubstantive rule of Harlow and the proceduralrules governing the pleading of claims andadjudication of motions to dismiss in federalcourt. The substantive law of qualified immunitydoes not permit plaintiffs to allege "extremelyabstract rights," but the procedural standards ofRule 8(a)(2) do allow the plaintiff to plead generalallegations of fact. Such general allegations of factmay permit many plaintiffs to overcome thedefendant's immunity at the pleading stage simplybecause the degree of factual specificity thatAnderson insists upon for adjudication of thedefense generally is not required from the plaintiffat the pleading stage of litigation. The balance ofthis article addresses how this tension might beresolved in a way that permits adjudication ofmeritorious qualified immunity defenses withoutthe inappropriate discovery that the defense issupposed to prevent.

A. The rise and fall of "heightened"pleading

Soon after Harlow was decided, lower courtsrecognized the tension between Harlow'ssubstantive standard and the liberal pleadingstandards of the Federal Rules of Civil Procedure.Conscious that immunity is supposed to be morethan a mere pleading rule, see Anderson, 483 U.S.at 639, but confronted by actual pleading rulesthat often make it easy for plaintiffs to allege, ifnot "extremely abstract rights," at least somewhatabstract circumstances, courts beganexperimenting with "heightened pleading" rules inqualified immunity cases. These rules sought tovindicate the policies of immunity by curtailingthe plaintiff's right to obtain discovery merely bypleading general facts and circumstancesconsistent with a right of recovery. Instead, courtsbegan to insist that plaintiffs plead the specificfacts and circumstances supporting the plaintiff'sclaim that the defendant violated clearlyestablished rights. See, e.g., Elliott v. Perez, 751F.2d 1472 (5th Cir. 1985).

In time, the heightened pleading rules metwith something of a backlash. First, qualifiedimmunity is an affirmative defense that aplaintiff's well-pleaded complaint is not ordinarilyrequired to anticipate and negate. See Gomez v.Toledo, 446 U.S. 635, 639-40 (1980). Second,particularized pleading is required by the FederalRules in only a few, very special areas, see FED.R. CIV. P. 9(b), and constitutional tort casesgenerally do not fall in those few specialcategories. See Leatherman v. Tarrant CountyNarcotics Intelligence and Coordination Unit,507 U.S. 163, 164-69 (1993). Finally, heightenedpleading rules deny a fundamental premise of theFederal Rules of Civil Procedure as manyplaintiffs lack, at the outset of the case, theinformation necessary to fully demonstrate theirright of recovery on the merits. Hence the rules'liberal notice pleading standards and presumptionthat discovery will allow the parties and the courtto determine later if the plaintiff has a triable case.Add to these concerns reason to doubt thepractical utility of heightened pleading standards.If the plaintiff's complaint does not meet theheightened pleading standard, the plaintiff often isgranted leave to amend in order to provide,essentially, a more definite statement of his claim,e.g., Elliott, 751 F.2d at 1472. Yet that processmay educate the plaintiff as to how better to pleadhis case. In addition, Rule 12(b)(6) dismissalsgenerally remain disfavored and intuition suggeststhat few judges who have ordered a plaintiff toamend his complaint will be quick to dismiss theamended complaint, provided that it shows at leastsome discernible improvement over the first. Thedefendant may be worse off for the exercisebecause the plaintiff is now better educated on thelaw governing the case.

As Leatherman perhaps implies, the future ofjudge-made heightened pleading standards inqualified immunity cases is unclear in any event.The Supreme Court has not squarely addressedthe appropriateness of judge-made heightenedpleading rules in qualified immunity cases, butLeatherman and Crawford-El v. Britton, 523 U.S.574 (1998), together hint that the Court might takea dim view of what arguably are judge-madeprocedural innovations at odds with the pleadingstandards of Rule 8(a)(2). In Leatherman theCourt rejected a heightened pleading standardapplied to civil rights claims brought againstmunicipalities under 42 U.S.C. § 1983 (1994) as"impossible to square . . . with the liberal systemof 'notice pleading' set up by the Federal Rules."507 U.S. at 168. Because municipalities cannotclaim qualified immunity, however, the Courtexpressly reserved whether the Harlow rule mightjustify a heightened pleading standard where


immunity is at issue. See id. at 166-67. Similarly,in Crawford-El the Court rejected a clear andconvincing evidence standard of proof adopted bythe Court of Appeals for the District of ColumbiaCircuit in cases in which motive is an essentialelement of the plaintiff's constitutional claim. Likeheightened pleading standards, the D.C. Circuit'sclear and convincing evidence standard wasdesigned to offset the ease with which plaintiffsmight allege facts that can overcome immunity atthe pleading stage. Citing Leatherman, theCrawford-El court observed that "we haveconsistently declined similar invitations to reviseestablished rules that are separate from thequalified immunity defense." 523 U.S. at 595.

As in Leatherman, the Supreme Court inCrawford-El did not squarely address the questionof heightened pleading rules designed to augmentthe qualified immunity defense. Perhaps for thatreason, several courts of appeals have since re-affirmed their prior heightened pleadingrequirements. See, e.g., Trulock v. Freeh, 275F.3d 391, 405 (4th Cir. 2001), reh'g denied, 2002WL 575630 (4th Cir. Apr. 17, 2002); Rippy v.Hattaway, 270 F.3d 416, 420-21 (6th Cir. 2001),pet. for cert. filed, (U.S. Apr. 8, 2002) (No. 01-1506); Laurie v. Alabama Court of CriminalAppeals, 256 F.3d 1256, 1275 (11th Cir. 2001);Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001); Lee v. City of Los Angeles, 250 F.3d 668,680 n.6 (9th Cir. 2001); Judge v. City of Lowell,160 F.3d 67, 72-75 (1st Cir.1998). Nevertheless,Crawford-El provokes doubt that the SupremeCourt would embrace the various circuits'heightened pleading standards in their currentform. See, e.g., Harbury v. Deutch, 233 F.3d 596,611 (D.C. Cir. 2000), reh'g denied, 244 F.3d 956,244 F.3d 960 (D.C. Cir.), cert. granted, 122 S. Ct.663 (2001). See also Rippy, 270 F.3d at 425-26(Gilman, J., concurring) (concluding thatheightened pleading rule does not surviveCrawford-El); Medina, 252 F.3d at 1135(Seymour, J., concurring). Crawford-El'semphasis on district judges' use of discretion andvarious procedures in the Federal Rules to"protect the substance of the immunity defense"suggests that the Court may take a dim view ofappellate court-imposed, across the board, rulesrequiring plaintiffs to plead more than requiredunder Rule 8. The Supreme Court closed itsCrawford-El opinion with the observation that"[g]iven the wide variety of civil rights and'constitutional tort' claims that trial judgesconfront, broad discretion in the management ofthe factfinding process may be more useful andequitable to all the parties than the categorical ruleimposed by the Court of Appeals." Id. at 600-01.That sentiment perhaps is telling with respect to

the future of heightened pleading rules inqualified immunity cases.

B. Beyond Rule 12 – summ ary judgmentand specific facts

Rule 8's generous notice pleading standardsgive the plaintiff several advantages in resisting aRule 12(b)(6) motion to dismiss. However if theplaintiff does not in fact have a good caseunderlying his general allegations, the summaryjudgment rule should expose its deficiencies. SeeCrawford-El, 523 U.S. at 600. Under Federal Ruleof Civil Procedure 56(e), a party against whom asummary judgment motion is made "may not restupon the mere allegations or denials" of hispleading, but instead must respond "by affidavitsor as otherwise provided" in Rule 56 and "setforth specific facts showing that there is a genuineissue for trial." The summary judgment rule thusaccomplishes two important things. First, itrequires the plaintiff to come forward withaffidavits or some other support for theallegations, so as to indicate to the court whetherthe plaintiff can prove those allegations at trial.Second, it forces the plaintiff to recast hisallegations from general allegations (sufficient atthe pleading stage) to specific facts. No longerdoes the plaintiff enjoy the presumption "thatgeneral allegations embrace those specific factsthat are necessary to support the claim." Lujan,497 U.S. at 889.

For these reasons, the summary judgmentmotion appears better suited for the assertion ofqualified immunity in those cases where the law isclearly established in the form of broad, generalrules, and cannot reasonably be expected todevelop much beyond those general rules. Forexample, many Fourth Amendment cases will turnon the existence of probable cause. See, e.g.,Anderson, 483 U.S. at 641; Hunter v. Bryant, 502U.S. 224, 228 (1991) (per curiam); Malley v.Briggs, 475 U.S. 335, 343 (1986). But despiteprobable cause's ubiquitous presence in FourthAmendment litigation, it remains "a fluid concept– turning on the assessment of probabilities inparticular factual contexts – not readily, or evenusefully, reduced to a neat set of legal rules."Illinois v. Gates, 462 U.S. 213, 232 (1983). Seealso Ornelas v. United States, 517 U.S. 690, 695(1996).

In cases involving such clearly establishedbroad rules, the successful assertion of immunitynecessarily turns on a careful examination of thefacts and circumstances of the particular case.That is in contrast with cases in which qualifiedimmunity turns more on legal questions that lendthemselves to formulation of categoric rules than


on facts. For example, whether there is probablecause for the issuance of a search warrant is veryfact-specific. From a "clearly established law"standpoint, therefore, whether an official isentitled to qualified immunity in applying for awarrant cannot be resolved except by reference tothe broad general rules by which probable causehas been defined and understood. Accordingly,the immunity inquiry becomes correspondinglyfact-specific, i.e., whether a reasonable officer inthe circumstances could believe probable causeexists to support issuance of the warrant on thebasis of the facts asserted in support of theapplication. See, e.g., Malley, 475 at 345.Likewise, the rule banning warrantless searches ofhomes absent probable cause and exigentcircumstances, e.g., Anderson, 483 U.S. at 641, isfairly well established. Immunity may be availablefor a warrantless home search, but it turns onapplication of broad general principles to specificfacts. The inquiry is formed as much by whether itwas clearly established "that the circumstanceswith which [an agent] was confronted did notconstitute probable cause and exigentcircumstances," id. at 640-41 (emphasis added), asit is by the established rules that the officer maynot search absent probable cause and exigentcircumstances.

Under notice pleading standards, therefore, acomplaint alleging an unlawful warrantless homesearch is sufficient to overcome qualifiedimmunity, so long as it alleges that the defendantagent:

• searched the plaintiff's home;

• without a warrant; and

• in the absence of probable cause and exigentcircumstances.

If one focuses simply on these general allegations,there really is no room for legal argument on theimmunity question. The focus of the immunityinquiry therefore must shift from relativelyabstract legal questions (what rules had case lawlaid down beforehand that are relevant to theconduct in question) to particular factual matters(who or what was the agent searching for, whathad the suspect done, what connection did thesuspect have to the place searched, what happenedor was feared might happen to necessitate animmediate warrantless search). See Anderson, 483U.S. at 641. The answers to these questions mayjustify qualified immunity, but they will requirethe court to address very particular facts that,under notice pleading principles, likely are notrequired to be pleaded in the complaint. Both thegenerality of the relevant, clearly established legalprinciples, and the likely generality of the

complaint's factual allegations, combine to makethe complaint sufficient to withstand a Rule 12motion to dismiss.

Another example well illustrates the differentoperation of the pleading and summary judgmentstandards. Suppose that a prisoner brings suitalleging both that guards beat him, in violation ofthe Eighth Amendment, and that the prisonwarden was responsible for the guards' action. Theword "responsible" is ambiguous, and perhaps theplaintiff means to say that the warden isvicariously liable. So interpreted, the allegationstates no valid claim because there is no vicariousliability for constitutional torts. See, e.g., RuizRivera v. Riley, 209 F.3d 24, 29 (1st Cir. 2000);Bibeau v. Pacific Northwest Research Found'n,188 F.3d 1105, 1114 (9th Cir. 1999), reh'g denied,amended, 208 F.3d 831 (9th Cir. 2000); Buford v.Runyon, 160 F.3d 1199, 1203 n.7 (8th Cir. 1998);Cronn v. Buffington, 150 F.3d 538, 544 (5th Cir.1998); Simpkins v. Dist. of Columbia Gov’t, 108F.3d 366, 369 (D.C. Cir. 1997); Del Raine v.Williford, 32 F.3d 1024, 1047 (7th Cir. 1994). Yetthe warden is not entitled to dismissal in thisexample because the allegation that he wasresponsible for the guards' conduct could alsomean that the warden ordered the plaintiff beaten.The general allegation that the warden wasresponsible thus can be construed to embracespecific facts—ordering the beating— needed tosustain recovery, and that is all that noticepleading requires in order to state a claim. SeeLujan v. Nat’l Wildlife Fed'n , 497 U.S. at 889.Given this possible interpretation of theallegation, it cannot be said "beyond doubt thatthe plaintiff can prove no set of facts in support ofhis claim which would entitle him to relief,"Conley, 355 U.S. at 45-46, and the standard forRule 12(b)(6) dismissals is not met.

The summary judgment motion usually is thebetter option in cases like these. Unlike thepleading stage, a plaintiff confronted by a propersummary judgment motion may not rest upon "themere allegations or denials" of his pleading, butinstead "must set forth specific facts showing thatthere is a genuine issue for trial." FED. R. CIV. P.56(e). This specificity requirement allows thedefendant to pierce the plaintiff's generalallegations and to insist upon a demonstration ofspecific facts that, if true, defeat immunity. Forexample, if in response to a summary judgmentmotion, the prisoner suing the warden continues torest on the general allegation that the warden wasresponsible for the beating at issue, he fails in hisobligations under Rule 56(e) to designate specificdisputed facts requiring a trial. Summary


judgment must be entered against him. See, e.g.,Bibeau, 188 F.3d at 1114-15.

As the above examples illustrate, the rules insome areas of constitutional law are about assettled as can be, and immunity in cases arising inthose areas turns more on factual particulars andless on the state of the law. By contrast, otherareas of law or other kinds of official conductmore readily lend themselves to bright-linecategoric rules. For example, resolution ofwhether the Fourth Amendment is violated byinviting reporters into a home during theexecution of a valid warrant, e.g., Wilson v.Layne, 526 U.S. 603 (1999), places less emphasison factual particulars and more on a considerationof relevant legal principles – principles that oftencan be expressed in categoric rules. See, e.g., id. at614. Accordingly, whether qualified immunityshields the conduct at issue in this example is aconcern more amenable to resolution on a Rule 12motion to dismiss because the case turns mainlyon legal principles, and not factual particulars.The complaint in such a case either alleges thatthe police invited the media into the home(thereby raising an issue as to the legality of thatconduct) or it does not. Accordingly, whetherillegality under the substantive law wasreasonably apparent also depends on applicationof legal principles to just a few facts involvinglittle nuance or detail. Such cases are the bestcandidates for testing the legal sufficiency of thecomplaint by a Rule 12 motion asserting qualifiedimmunity.

III. Summary judgment and discovery:navigating the shoals

Notice the relationship between the pleadingrules, the discovery rules, and the summaryjudgment rule. The pleading rules are forgiving ofgeneral allegations, but the summary judgmentrule is not. The reason for that is that the pleadingrules operate on the premise that the plaintiff maynot have all the facts in hand and may have topaint with a broad brush. The discovery rules willallow the plaintiff to obtain the additional factsneeded to fill in the details and demonstrate aright of recovery. See WRIGHT & M ILLER, § 1215at 1-3. The summary judgment rule usuallyoperates on the premise that the plaintiff has had afair opportunity for discovery, both to identify thespecific facts that will entitle him to recover andto marshal the evidence needed to prove thosefacts at trial, if indeed those facts exist.

This relationship between summary judgmentand discovery seems to make many practitionersreluctant to resort to a threshold summaryjudgment motion in qualified immunity cases.

This impulse is perhaps understandable. Thatsummary judgment may be entered only "afteradequate time for discovery," Celotex Corp. v.Catrett, 477 U.S. 317, 322 (1986), is something ofan axiom among plaintiffs' counsel. What isadequate, however, necessarily varies from case tocase, and it is fair to say that the nature ofqualified immunity is such that "adequate" timefor discovery in many cases will mean no time atall. Under Harlow, the general rule is thatdiscovery may not be permitted until after thethreshold immunity issue is resolved. Harlow alsoseems to have contemplated that most immunityissues would be resolved on summary judgment.See 457 U.S. at 818. In addition, as Justice (thenJudge) Ginsburg explained, although "[s]ummaryjudgment, in the mine-run of cases, is generallyinappropriate 'until all discovery has beencompleted' . . . creditable pleas of officialimmunity remove cases from the mine-runcategory." Martin v. D.C. Metro. Police Dep’t,812 F.2d 1425, 1436-37 (D.C. Cir. 1987)(citations omitted). In short, no absolute ruleentitles a party to discovery simply because hisadversary seeks summary judgment, especially inqualified immunity cases.

A. Rule 56(f): sw ord and shield

Anderson v. Creighton and Crawford-Elrecognize that in some cases a plaintiff may havea need for immunity-related discovery, andplaintiffs can be counted upon to invoke this need.The problem then becomes identifying andproposing procedures so that the court maydetermine whether it can grant summary judgmentwithout affording discovery, or if not, the matterson which discovery is needed. Once again, therules of civil procedure provide an answer. UnderRule 56(f) a district court presented with aclaimed need for discovery for use in opposing asummary judgment motion may:

• deny the motion for summary judgment;

• continue the motion pending discovery; or

• "make such other order as is just."

The first two options obviously accommodate theplaintiff's interest. The last option canaccommodate the defendant official's interest inavoiding unnecessary discovery. If the plaintiffhas no legitimate entitlement to discovery tooppose the summary judgment motion, Harlow'sgeneral prohibition on discovery controls, and a"just" order will deny the plea for discovery andproceed to adjudicate the summary judgmentmotion without delay.

Rule 56(f) also provides some substantialhurdles for a party seeking discovery under its


terms. Although standards vary from circuit tocircuit, clearly a mere conclusory assertion thatdiscovery is necessary to oppose summaryjudgment is not a sufficient basis for relief.Instead, the party invoking Rule 56(f) typicallymust submit an affidavit that specifies:

• what facts are believed to exist and beobtainable through discovery;

• how those anticipated facts are expected toallow the nonmovant to demonstrate theexistence of a genuine issue of material factwhen responding to the summary judgmentmotion;

• the efforts that were made to adduce thosefacts; and

• why those efforts were not successful.

See, e.g., Bradford v. DANA Corp ., 249 F.3d 807,809 (8th Cir. 2001); Price v. W. Res.s, Inc., 232F.3d 779 783 (10th Cir. 2000); Plott v. Gen.Motors Corp ., 71 F.3d 1190, 1196 (6th Cir. 1995);United States v. All Assets and Equip. of W. SideBldg. Corp ., 58 F.3d 1181, 1190 (7th Cir. 1995);Strag v. Board of Trustees, Craven Cmty College,55 F.3d 943, 952-53 (4th Cir. 1995); ResolutionTrust Corp. v. North Bridge Assocs., Inc., 22 F.3d1198, 1202 (1st Cir. 1994); Hudson River SloopClearwater v. Dep't of the Navy, 891 F.2d 414,422 (2d Cir. 1989); Mackey v. Pioneer Nat'l Bank,867 F.2d 520, 524 (9th Cir. 1989); Lunderstadt v.Colafella , 885 F.2d 66, 71 (3d Cir. 1989);Wallace v. Brownell Pontiac-GMC Co., Inc., 703F.2d 525, 527 (11th Cir. 1983); Exxon Corp. v.FTC, 663 F.2d 120, 126-27 (D.C. Cir.1980);Securities & Exch. Comm'n v. Spence & GreenChem. Co., 612 F.2d 896, 901 (5th Cir. 1980).Rule 56(f), thereby operates as much as a shieldfor summary judgment movants seeking to avoidtime consuming and expensive discovery as itdoes a sword for nonmovants seeking discoveryas a way to stay in court. Moreover, although adistrict court does have discretion to grant Rule56(f) relief, see Crawford-El, 523 U.S. at 600n.20, the Supreme Court has warned that wherequalified immunity is at stake, the district court"must exercise its discretion so that officials arenot subjected to unnecessary and burdensomediscovery . . . ." Id. at 598. Even if the districtcourt allows discovery, the district court must useits broad discretion under Rule 26 to tailor thatdiscovery narrowly to the immunity issue. See id.;See also Anderson, 483 U.S. at 646, n.6.

B. Putting it all into practice: moving forsummary judgm ent and avoiding discovery

Central to any strategy of avoiding discoveryon a threshold summary judgment motion is

persuading the court that Harlow and Andersonpermit discovery only upon a showing of need,and that Rule 56(f) provides the mechanism underwhich the plaintiff makes that showing. Inaddition, FED. R. CIV. P. 26(d) generally providesthat "a party may not seek discovery from anysource before the parties have conferred asrequired by Rule 26(f)." Thus, the plaintiff isprecluded from unilaterally initiating discovery inresponse to a defendant's summary judgmentmotion. As for the Rule 26(f) meeting, one optionis to move the court to defer the meeting andrelated obligations until after the defendant'ssummary judgment motion and any Rule 56(f)application made by the plaintiff are ruled upon.In many cases, however, there is little reason notto go forward with the Rule 26(f) discoveryplanning conference. At the conference, theparties discuss "the subjects on which discoveryshould be completed, and whether discoveryshould be conducted in phases or be limited to orfocused on particular issues . . . ." FED. R. CIV. P.26(f)(2). Unless some discovery is warranted, thedefendant should propose that discovery not takeplace, or in the alternative, that it be had onlyupon the plaintiff's showing of need made underthe provisions of Rule 56(f). If the parties cannotagree, their respective positions are then reportedto the court which, upon receiving the report, hasthe authority to enter a scheduling order settingforth "the extent of discovery to be permitted

. . . ." FED. R. CIV. P. 16(b)(2). Counsel for adefendant asserting qualified immunity shouldtake care to draft a concise and persuasivestatement of the defendant's proposed plan forinclusion in the report. Citation to Harlow,Anderson, and other relevant authorities often ishelpful in obtaining the desired scheduling order.The defendant's proposed plan also should bequite explicit in identifying Rule 56(f) as thesafety valve in the event the plaintiff truly has aneed for immunity-related discovery. Finally, itbears noting that the Rule 26(f) conference andreport also provide a vehicle through which adefendant asserting immunity may seek relieffrom Rule 26(a)'s mandatory disclosureobligation. See FED. R. CIV. P. 26(f)(1).

The tactical advantages of using Rules 16(b)and 26(f) as the vehicles to avoid discovery andmandatory disclosure cannot be overstated. The2000 amendments to the Federal Rules of CivilProcedure reflect a clear emphasis on early andactive judicial management of the discoveryprocess in order to curtail excessive andunnecessary discovery. See Advisory CommitteeNote, 2000 Amendment to FED. R. CIV. P.26(b)(1) (discussing "the need for active judicial


use of subdivision(b)(2) to control excessive discovery" and citing Crawford-El). Thisapproach is attractive to courts because it

comports with the general policies of the civilrules, as well as the Supreme Court's teachings,about discovery in Harlow, Anderson, andCrawford-El.

IV. Conclusion

Successfully asserting qualified immunityrequires far more than identification andexposition of the relevant substantive legalprinciples. Careful attention to whether the casecalls for a motion to dismiss or a motion forsummary judgment is essential to success in manycases. At the same time, energetic use of theprocedural mechanisms of Rules 16, 26 and 56provides the best means for obtaining a judicialruling on a meritorious immunity defense withoutembroiling government officials in unnecessarydiscovery.�

ABOUT THE AUTHOR

�Richard Montague is a trial attorney in theConstitutional Tort Litigation Staff of the CivilDivision's Torts Branch. He joined theDepartment in 1989 through the AttorneyGeneral's Honors Program. He has litigatednumerous immunity and other personal liabilityissues in both the district courts and the courts ofappeals.a

Defending Failed Prosecution ActionsKristy L. ParkerConstitutional Torts StaffCivil Division

I. Introduction

Individual-capacity litigation presents theDOJ's civil litigators with unique challenges andprovides opportunities to assist those charged withcarrying out the DOJ's core function— theenforcement of the federal criminal code in a fair,but aggressive, manner. Among the mostchallenging of these cases is the "failedprosecution" action, in which a former criminaldefendant files a civil lawsuit claimingimproprieties in the conduct of his criminal case.The complexity of these cases stems from anumber of sources. First, by their very nature,failed prosecution actions involve a criminalinvestigation or prosecution that has gone badly insome sense. Second, the claims advanced nearlyalways involve allegations of serious investigativeor prosecutorial misconduct. Finally, more often

than not, the prosecutions that end without aconviction were challenging to begin with,typically involving a white-collar or otherwisehigh-profile target charged with a crime that isrelatively difficult to prove. Further complicatingmatters, civil actions alleging prosecutorialmisconduct are often brought in tandem with, orfollow closely after motions for attorney's feesand litigation expenses brought pursuant to theHyde Amendment, in which a prevailing criminaldefendant alleges that the prosecution wasvexatious.

In the post-9/11 climate, it is more likely thanever that federal prosecutors and law enforcementofficers will find themselves operating inuncharted legal territory, and that their efforts willinvite considerable scrutiny from the defense bar,the judiciary, and even the internationalcommunity. It is therefore vital to the DOJ'smission that civil attorneys defend failedprosecution actions vigorously and creatively. Onthat note, it is important to keep in mind that, even


in the most difficult cases, individual federaldefendants have powerful arguments available toavert undue outside inquiry into the government'slaw enforcement efforts. What follows is a briefoverview of some of the issues that frequentlyarise in these cases and suggestions for how bestto address them, hopefully by way of a dispositivemotion in advance of discovery.

II. Issues in a typical fa iled prosecution case

A. The defendants

Failed prosecution actions typically involveBivens claims against individual federalemployees, as well as tort claims against theUnited States brought pursuant to the Federal TortClaims Act ("FTCA"). See 28 U.S.C. §§ 1346(b),at 2671-2680 (1993). As a general rule, becausefederal prosecutors enjoy absolute immunity fromsuit for the conduct of their prosecutorial duties(as opposed to investigative conduct for whichthey are entitled only to qualified immunity),prosecutors are named as defendants in theseactions much less frequently than are the agencypersonnel who conduct the investigations that leadto indictments and prosecutions. Even so,prosecutors are almost always important witnessesin failed prosecution actions and, as explainedmore fully below, plaintiffs invariably seek toinquire into prosecutorial deliberations even whenthey do not, or cannot, sue the prosecutorsthemselves.

B. The claims

It is axiomatic in failed prosecution actionsthat the plaintiffs' claims will be inflammatory. Inthe garden-variety case, the former criminaldefendant will assert that those who prosecutedhim were not merely mistaken, but were activelymalicious, even to the point of manufacturing theentire criminal case, in their zeal either to obtain aconviction or to effect a personal vendetta againstthe plaintiff. As in virtually all Bivens actions, theplaintiffs will attempt to employ the sensationalnature of the facts alleged in an effort to divert theattention of the court, and worse, the defendantsand their attorneys, from the law governing theirclaims.

The first order of business in defendingagainst such claims is to avoid the temptation torelitigate the underlying criminal case. Instead it isnecessary to focus on ways in which plaintiffs'complaint can be disposed of, even if the factualallegations are true. Key to this endeavor is toremember that in a criminal prosecution, thegovernment has the heavy burden ofdemonstrating that the defendant is guilty beyonda reasonable doubt. However, the reasonable

doubt standard has no relevance, whatsoever, tothe defense of a civil lawsuit arising out of a failedprosecution. In other words, plaintiff's actual guiltor innocence matters very little, if at all. Rather, itis now the plaintiff's duty to demonstrate that hisinnocence was so apparent, and the prosecution'scase so weak, that no reasonable person couldhave thought the prosecution had merit. With thisin mind, what follows is a brief sketch of theclaims most commonly advanced in a failedprosecution action and suggestions for how todefend against them in motion practice.

C. Claims against individuals

Franks claims

Perhaps the most common claim advancedagainst individual federal defendants in failedprosecution actions is the claim that a lawenforcement officer or prosecutor secured a searchwarrant based upon materially false or misleadingstatements to a federal magistrate, popularlyknown as a "Franks" claim. See Franks v.Delaware, 438 U.S. 154 (1978). The key to thesuccessful defense of a Franks claim is to focuson whether the plaintiff can demonstrate that theperson who applied for and/or executed theallegedly defective warrant, did so in the absenceof arguable probable cause. A warrant applicationviolates the Franks standard only if the falsehoodsor omissions (even if they are made knowingly)are material, meaning that an affidavit "corrected"to include the true or omitted statements wouldnot support a finding of probable cause forissuance of a search warrant. Moreover, in anindividual-capacity action, the probable causestandard is an even lower threshold because of therequirement that a plaintiff overcome the federaldefendant's entitlement to qualified immunity. Assuch, a plaintiff cannot survive a dispositivemotion unless he can demonstrate that thecorrected affidavit could not even arguably havesupported a finding of probable cause. In otherwords, the affidavit must be so lacking that noreasonable officer could possibly believe that theinformation therein might constitute probablecause for issuance of a search warrant.

"Constitutional" malicious prosecution claims

Another typical claim advanced againstindividual defendants in a failed prosecutionaction is the constitutional malicious prosecutionclaim — i.e., a claim that a prosecution withoutprobable cause amounts to a constitutional, ratherthan merely a common-law, harm. The first line ofdefense against such a claim is the argument thatmalicious prosecution is not, in fact, aconstitutional tort at all. The United StatesSupreme Court addressed this question in 1994


and left it unresolved. See Albright v. Oliver, 510U.S. 266 (1994). While two justices wrote thatmalicious prosecution was not actionable as aconstitutional claim, a plurality of the court heldthat if malicious prosecution is a constitutionaltort, it is actionable only as an unreasonablesearch or seizure under the Fourth Amendment,and not as a deprivation of substantive dueprocess under the Fifth Amendment. Id. at 271.Therefore, an allegation that plaintiff wasprosecuted without probable cause is notactionable as a constitutional tort unless there is,at the very least, an attendant action by thedefendant that amounts to an unreasonableseizure. Depending on the law of the relevantjurisdiction, it may be possible to argue that it isnot clearly established that the defendant may beheld liable for the actions plaintiff contendsconstitute a malicious prosecution. Assuming thatmalicious prosecution may be advanced as aconstitutional tort claim, as in the Franks context,a plaintiff cannot prevail unless he candemonstrate that the prosecution was undertakenin the absence of arguable probable cause.

Retaliatory prosecution claims

Closely related to the constitutional maliciousprosecution claim is the retaliatory prosecutionclaim, in which plaintiff alleges that theprosecution to which he was subjected wasundertaken in retaliation for the exercise of aconstitutionally protected right. More often thannot, a plaintiff advancing this claim alleges theprosecution was in retaliation for plaintiff'sprotected speech critical of the governmentagency that investigated and prosecuted him. Forinstance, retaliatory prosecution plaintiffs whowere previously white-collar defendants oftencontend that they were made to face criminalprosecution, rather than administrative action,because of their well-known opposition toexcessive government regulation of theirparticular industry. Such claims can be difficult todefend in motion practice because they involveallegations of bad motive that are difficult tocounter when properly stated without raising thepossibility that discovery will produce a genuinefactual dispute.

One strategy for overcoming this difficultybuilds upon the Supreme Court's admonition inCrawford-El v. Britton, 523 U.S. 574 (1998).There, the court commanded trial courts toexercise their discretion in a manner that "protectsthe substance of the qualified immunity defense"so as to ensure "that officials are not subjected tounnecessary and burdensome discovery or trial

proceedings." Id. at 597-98. Because the qualifiedimmunity defense demands an objective test forliability, DOJ attorneys should cite Crawford-El,and the general body of case law governingdiscriminatory motive claims, for the propositionthat a federal employee should not be held liablefor undertaking a prosecution for retaliatoryreasons if the person prosecuted would have beenprosecuted in spite of the retaliatory motive.Further, attorneys defending a retaliatoryprosecution claim should contend that it is notclearly established that a federal employee may beheld constitutionally liable for carrying out aprosecution that is supported by arguable probablecause. Should the arguable probable causeargument be unavailable for some reason, it isnonetheless possible (though somewhat moredifficult) to prevail on a motion arguing thatplaintiff has failed to allege facts that amount toan objective manifestation of improper motive.See Technical Ordinance, Inc.v. United States,244 F.3d 641, 651 (8th Cir. 2001). Because it isrelatively easy for plaintiffs to state an impropermotive claim, FED. R. CIV. P. 56 motions arebetter vehicles than FED. R. CIV. P. 12 motions fordefending these claims. See Richard Montague,Asserting Qualified Immunity and AvoidingDiscovery , this issue.

Selective prosecution claims

Finally, failed prosecution actions ofteninclude a claim for selective prosecution premisedon the Equal Protection Clause of the FifthAmendment. Because a selective prosecutionallegation is typically advanced as a defense to anongoing criminal prosecution, and because, inmaking the allegation, the plaintiff concedes theexistence of probable cause, attorneys defending aselective prosecution claim should argue thatplaintiffs must meet a heavy burden in order tosurvive a motion to dismiss. As the SupremeCourt has asserted: "[s]o long as the prosecutorhas probable cause to believe that the accusedcommitted an offense defined by statute, thedecision whether or not to prosecute, and whatcharge to file or bring before a grand jury,generally rests entirely in his discretion." Wayte v.United States, 470 U.S. 598, 607 (1985) (quotingBordenkircher v. Hayes, 434 U.S. 357, 364(1978)). Moreover, all prosecutions are in somesense selective in that "American governments donot have the will or resources to prosecute allmalefactors." White v. Elrod, 816 F.2d 1172, 1176(7th Cir. 1987). For that reason, unless the choiceof whom to prosecute is "deliberately based upon


an unjustifiable standard such as race, religion, orother arbitrary classification, including theexercise of protected constitutional or statutoryrights," there is no constitutional violation. Wayte,470 U.S. at 608 (internal quotations and citationsomitted) (emphasis added).

Because a selective prosecution claim is not adefense to the merits of a charge, and because itseeks judicial intervention into a well-establishedprovince of the Executive Branch, courts presumethat prosecutions are proper in the absence ofclear evidence to the contrary. See United States v.Armstrong, 517 U.S. 456, 463 (1996). In order tomake out a violation of the equal protectionclause, "[t]he claimant must demonstrate that thefederal prosecutorial policy 'had a discriminatoryeffect and that it was motivated by adiscriminatory purpose.'" Id. at 465. In order toshow discriminatory effect, the claimant mustdemonstrate that other similarly situated personswere not prosecuted. Id. Most significant forpurposes of defending a civil selective prosecutionclaim plaintiffs must identify others similarlysituated who were not prosecuted in advance ofobtaining any further discovery. The SupremeCourt has held that this burden is intended to besufficiently heavy to act as a "significant barrier tothe litigation of insubstantial claims." Id. at 464.Moreover, there is no basis for a plaintiff to assertthat the discovery threshold should be lower in acivil case than in a criminal action. The reasoningon which the Supreme Court relied in developingthe qualified immunity defense to civil liability –the need to avoid burdensome interference by thecourts in core Executive Branch matters – isvirtually identical to the reasoning identified bythe Supreme Court as precluding judicialoversight of the exercise of prosecutorialdiscretion.

In addition to the high threshold forestablishing the entitlement to discovery on aselective prosecution claim, government attorneysmay also argue that only those actuallyresponsible for bringing a prosecution may beheld liable for an unconstitutionally selectiveprosecution. This is important in two respects.First, federal prosecutors are entitled to absoluteimmunity from suits based on the conduct of theirprosecutorial duties. The exercise of prosecutorialdiscretion to determine whether or not to pursuecriminal charges based on a given body ofevidence falls squarely within the realm ofimmunized activity. Further, federal employees,other than prosecutors, almost never have any

authority over the actual decision to prosecute.Selective prosecution claims are, therefore,amenable to dispositive motions on the grounds ofabsolute and qualified immunity.

Claims against the United States

The most frequently advanced common lawtort claim advanced in a failed prosecution case is,of course, the allegation that conduct byemployees of the United States constituted amalicious prosecution. Defending any claim filedpursuant to the FTCA requires the application ofthe law of the place in which the alleged conductoccurred. However, the elements of the commonlaw tort of malicious prosecution are generally thesame in all jurisdictions, and virtually alwaysrequire a demonstration by the plaintiff that aprosecution has been initiated in the absence ofprobable cause so obvious that an inference ofmalice is warranted. See, e.g., Conway v.Smerling, 635 N.E. 2d 268, 271 (Mass. 1994). Aswith the arguable probable cause standardgoverning the qualified immunity defense,proving the requisite absence of probable cause isdifficult for the malicious prosecution plaintiff, asthe probable cause necessary to avoid liability issubstantially lower than the probable causenecessary to survive dismissal of a criminalindictment. In addition, plaintiffs mustdemonstrate that the alleged maliciousprosecution was undertaken by an "investigativelaw enforcement officer" in order to fall within theUnited States' waiver of its sovereign immunityover malicious prosecution claims. See 28 U.S.C.§ 2680(h) (1994). Most significant in this regardis the fact that prosecutors – those most oftenresponsible for the decision to prosecute – are notconsidered to be investigative law enforcementofficers. See Moore v. Valder, 213 F.3d 705, 710(D.C. Cir. 2000).

III. Individual-capacity failed prosecutionactions and motions for expenses andattorney's fees pursuant to the HydeAmendment

As noted above, civil actions that nameindividual defendants and arise out of failedcriminal prosecutions are often accompanied bymotions for attorney's fees and expenses filedpursuant to the Hyde Amendment. Because theissues raised in a Hyde Amendment proceedingvery often overlap with issues raised inBivens/FTCA suits, and the actions will likelyproceed in the same jurisdiction before the same


judge, it is crucial that the defense of both actionsbe coordinated.

A. W hat is the Hyde Am endment?

The "Hyde Amendment," named for IllinoisCongressman Henry J. Hyde, was enacted byCongress in 1997 in response to perceivedprosecutorial abuses by the United StatesDepartment of Justice. The Hyde Amendmentconstitutes a limited waiver of the United States'sovereign immunity by allowing prevailingcriminal defendants to recover attorney's fees andcosts in cases involving prosecutorial misconduct.Because of its relatively recent enactment, manyaspects of Hyde Amendment practice, includingwhat constitutes a "prevailing party" and how thestandard for recovery should be applied, have yetto become the subject of anything approaching ajudicial consensus. Several courts have held (inspite of the United States' arguments to thecontrary) that a Hyde Amendment plaintiff isconsidered to be a prevailing party even if thecriminal case is dismissed voluntarily withoutprejudice. As to the standard for recovery, thestatute provides that costs and fees are to beawarded "where the court finds the position of theUnited States was vexatious, frivolous, or in badfaith." 18 U.S.C. § 3006A (2000). TheUnited States recently persuaded the First CircuitCourt of Appeals to adopt a strict standard ofrecovery, requiring a showing both that probablecause was lacking and that the prosecution wasmotivated by malice. As the First Circuit held inUnited States v. Knott, 256 F.3d 20 (1st Cir.2001), in order for recovery under the HydeAmendment to be warranted, the moving partymust demonstrate that "the criminal case wasobjectively deficient, in that it lacked either legalmerit or factual foundation, and show that thegovernment's conduct, when viewed objectively,manifests maliciousness or an intent to harass orannoy." Id. at 29.

B. Importance of defending HydeAm endment claims with an eye towardsubsequent civil litigation

As is apparent by a comparison of thestandards of recovery in Hyde Amendmentactions and Bivens/FTCA actions arising fromfailed prosecutions, the outcome of the formermay well have a substantial impact on thepositions government attorneys advance in thelatter. As such, it is extremely important for DOJattorneys to mount a vigorous defense of theUnited States' probable cause to prosecute when

defending a Hyde Amendment motion. Of course,as in every case, DOJ attorneys must diligentlyinvestigate the factual basis for any defenseasserted in litigation and must undertake todetermine whether the prosecution at issue was,indeed, supported by probable cause. However, itis equally important not to be overly influencedby the fact that the prosecution at issue endedunsuccessfully. For example, the fact thatattorneys for the United States may ultimatelydecide that they lack sufficient evidence to provetheir case beyond a reasonable doubt, or the factthat a jury acquits a defendant prosecuted by theUnited States, does not mean that the investigationand prosecution were never supported by probablecause. Moreover, it is crucial to remember thatprosecuting attorneys and law enforcementofficers are not required to anticipate a court'sultimate evidentiary rulings to suppress or excludeevidence, as long as there is a reasonableargument that the evidence should have beenadmitted. Finally, another incentive to engage invigorous defense of Hyde Amendment motions ismore proactive – that being the possible estoppeleffects a favorable ruling may have in aBivens/FTCA case. Hyde Amendment decisionshave no estoppel effect on individual defendantsin a subsequent Bivens suit because theindividuals are not parties to the criminal case.However, such decisions can serve to estopplaintiffs, who are parties to the criminal matter,from relitigating issues they have already had afull and fair opportunity to litigate in the criminalcase. If, for example, the district court determines,as part of its decision denying fees under the HydeAmendment, that the prosecution was not lackingin legal merit or factual foundation, then plaintiffsmight well be estopped from advancing anyBivens or FTCA claims dependent upon theabsence of arguable probable cause.

IV. Going fishing: the quest for grand jurydisclosures and other discovery issues

Aside from the recovery of money damages,the primary goal of virtually all failed prosecutionplaintiffs engage in wide ranging discovery of thegovernment's reasons for conducting a criminalinvestigation and prosecution, and often to learnwhat witnesses might have told the grand jury.This endeavor can place an enormous burden onthe government in terms of the sheer volume ofinformation requested. Even more importantly,the battle for discovery may jeopardize twocrucial elements of the criminal justice system: the


rule of grand jury secrecy and the government'sdeliberative process privilege.

As to the inevitable request for disclosure ofgrand jury materials, DOJ attorneys should beaware that there is a great deal of confusionamong attorneys, and even judges, concerning theprocedures governing such disclosures. FederalRule of Criminal Procedure 6(e)(2) prohibits thedisclosure by "a grand juror, an interpreter, astenographer, an operator of a recording device, atypist who transcribes recorded testimony, anattorney for the government, or any person towhom disclosure is made under paragraph(3)(A)(ii) of this subdivision" of "mattersoccurring before the grand jury." Knowingviolations of the rule of grand jury secrecy arepunishable as a contempt of court. In view of thisprohibition, DOJ attorneys must understand thatcivil attorneys representing the United States, orindividual federal defendants, in litigation arisingout of a federal criminal prosecution, are notpermitted to have access to 6(e) material absent acourt order. For that reason, before reviewing anyprosecution related documents, civil attorneysmust ensure that someone with 6(e) clearance, andwho is preferably not a defendant in any pendingcivil action arising out of the prosecution,removes all 6(e) material from the files andsecures them for safekeeping. Civil attorneys mustalso instruct their clients, many of whom do have6(e) clearance, that they cannot disclose mattersoccurring before the grand jury, even in thecontext of attorney-client discussions.

DOJ attorneys are further responsible forensuring that the proper procedures and standardsfor disclosing grand jury materials are followed.Grand jury disclosures are governed by FED. R.CRIM . P. 6(e)(3)(C)(i), which permits disclosuresof matters occurring before a grand jury "when sodirected by a court preliminarily to or inconnection with a judicial proceeding." Contraryto popular belief, and to practices routinelyundertaken in error, requests for such disclosurescannot be made in the context of the ongoing civilaction. Rather, in accordance with Rule6(e)(3)(D), petitions for grand jury disclosures"shall be filed in the district where the grand juryconvened." At that point, the court may requirenotice to persons who may be affected by thedisclosure, including the testifying witnessesthemselves. Rule 6(e)(3)(D) also provides forsuch persons to have "a reasonable opportunity toappear and be heard." Moreover, the legalstandard that must be met by parties seeking

disclosure is exceedingly high. The SupremeCourt has held that disclosure of grand jurymaterials requires a strong showing of"particularized need." United States v. SellsEngineering, 463 U.S. 418, 442-43 (1983). Ingeneral, meeting this standard will require ashowing that information presented to the grandjury is essential to the resolution of the issues athand, and that the information cannot be obtainedfrom some other source. Disclosure for mereconvenience will not meet the standard. Courtshave consistently held that parties mustdemonstrate that they have attempted to obtain theinformation through conventional discovery buthave been unable to do so. Grand jury witnessesare not prevented from disclosing their owntestimony if they so choose, and parties seekingdisclosure are, at the very least, required todemonstrate that they attempted to obtain theinformation sought from the witnessesthemselves.

As noted above, DOJ attorneys mustsafeguard grand jury secrecy to the greatest extentpossible. For this reason, DOJ attorneys shouldthink carefully about whether they will needaccess to grand jury information in order todefend a failed prosecution action. In most cases,it should be possible to defend the case withoutseeking a grand jury disclosure order. Again, thecentral issue in nearly all failed prosecution casesis whether or not there was arguable probablecause to support the investigation and prosecution.Because prosecutors have absolute immunity fromsuit and because their conduct is not actionableunder the FTCA, it is the conduct of the lawenforcement officers who conducted theinvestigation and provided information to theprosecutors that is truly at issue. Consequently,the information presented by the prosecutor to thegrand jury is generally not at issue and is,therefore, not an appropriate area of discovery. Tothe extent plaintiffs are entitled to any discovery,it should be limited to the information gathered bythe investigative law enforcement officers andwhether that information provided an arguablebasis for probable cause. Thus, the existence ofparticularized need for a grand jury disclosureshould be the exception, rather than the rule.

In addition to grand jury materials, failedprosecution plaintiffs often seek to discover theinternal deliberations of DOJ employeesconcerning the criminal investigation andprosecution. The importance of protecting thesematerials from disclosure to the greatest extent


possible cannot be overstated in view of thechilling effect such discovery can have on theability of federal prosecutors to have frankdiscussions about whether, and how, to litigate apotential criminal matter. The deliberative processprivilege concerning such discussions has longbeen recognized by the courts for precisely thisreason. See, e.g., United States v. Fernandez, 231F.3d 1240, 1246 (9th Cir. 2000). The prosecutorsthemselves are unlikely to be viable defendants inthese cases because of their entitlement toabsolute immunity from suit on claims arising outof the exercise of their prosecutorial duties. Solong as the prosecutor is not the defendant, or theclaims in the lawsuit reach strictly prosecutorialfunctions, the deliberations of the prosecutorsshould not be discoverable. Rather, thedeliberative process at issue in the case is that ofthe employees of the investigating agencies, andattorneys defending the failed prosecution actionshould stress that the only discoverableinformation relates to the factual information theinvestigating agents provided to the prosecutors.There may be occasions, depending on whetherthere is any particularly sensitive materials in theprosecutorial files, when it is appropriate to waivethe deliberative process privilege in the service oflitigation strategy. An example of such a casewould be one in which there is no information inthe government files that the United States wishesto protect, and in which the files and testimony ofthe prosecutors will reveal an informed decisionto prosecute was made, based on complete factualinformation, thereby rendering the decision of theprosecutors the legal cause of the prosecution.Such decisions should be undertaken only after athorough review of the prosecutorial files andwith extreme caution, bearing in mind thatselective waivers of privileges are not permitted.See, e.g., Tennenbaum v. Deloitte & Touche, 77F.3d 337, 340 (9th Cir. 1996). See also In reGrand Jury Proceedings, 219 F.3d 175, 182 (2dCir. 2000).

V. Conclusion

Failed prosecution cases present a complex setof challenges to the DOJ attorneys assigned todefend them. This has never been more true thanat present, when our federal prosecutors areassuming ever more responsibility for enforcingthe rule of law in cases of internationalsignificance. Especially in cases involvinginternational terrorism or large-scale domesticcriminal operations, our prosecutors will be facingwell-represented defendants and considerable

public scrutiny. In the likely event that we do not prevail in every single case, it is nearly certainthat these defendants, and those who supportthem, will continue to use individual-capacitylitigation as a means of collateral attack on ourprosecutorial efforts. For that reason, thechallenges presented by these cases also carrywith them a unique opportunity, as theconsiderable skills of our civil attorneys havenever been more in demand as a means ofensuring that our prosecutors and law enforcementofficers are able to do their jobs without excessivefear of burdensome litigation.�

ABOUT THE AUTHOR

�Ms. Parker joined the Constitutional TortsStaff as part of the Attorney General's HonorProgram in October 1998. Since that time, she hasparticipated in defending several failedprosecution actions and has lectured on the topicat the National Advocacy Center in Columbia,South Carolina. Ms. Parker can be reached byemail at [email protected] or by telephoneat (202) 616-4169.a


Surgical Use of Daubert in the Defenseof Medical Malpractice ActionsMary McElroy LeachSenior Trial Counsel, FTCA StaffCivil Division

Ten years ago it was practically impossiblefor the United States, as a defendant, to prevail ona summary judgment motion in a medicalmalpractice case. The consensus was that ifplaintiff had an expert, the defense needed anexpert, and resolution of the medical issues thenrevolved around the classic "battle of the experts"fought at trial. Effective December 1, 2000, FED.R. EVID . 702 was amended to reflect the SupremeCourt's landmark decision of Daubert v. MerrellDow Pharm., Inc., 509 U.S. 579 (1993). Recently,FED. R. CIV. P. 26(a)(2)(B) has been strengthenedto require an expert to provide a written reportthat includes a "complete statement of all opinionsto be expressed and the basis and reasonstherefor." The combination of these twoamendments has made it possible to prevail in atort case on a motion for summary judgment,sparing the United States, and plaintiff, theexpense of trial.

Daubert rectified the law of evidence. Thetrial judge, under FED. R. Evid. 702, is nowobliged to perform a "gatekeeper" function."Faced with a proffer of expert scientifictestimony, then, the trial judge must determine atthe outset, pursuant to Rule 104(a), whether theexpert is proposing to testify to (1) scientificknowledge that (2) will assist the trier of fact tounderstand or determine a fact in issue." 509 U.S.at 592. This gatekeeper responsibility requires thetrial judge to assess the reasoning andmethodology underlying the expert's opinion,asking whether the expert is competent to testifyto the opinion, and whether the opinion has areliable basis in the knowledge and experience ofthe expert's discipline.

The Supreme Court suggested a non-exclusivelist of factors which bear on the analysis. Thosefactors include whether the theory or technique:

• can be, or has been, tested;

• has been subject to peer review andpublication;

• has a known or potential rate of error;

• is governed by standards controlling itsoperation;

• has "general acceptance" within the relevantscientific community.

509 U.S. at 592-94.

In Daubert and its progeny, the SupremeCourt explained that admissibility of experttestimony is limited. "[N]othing in either Daubertor the Federal Rules of Evidence requires adistrict court to admit opinion evidence that isconnected to existing data only by the ipse dixit ofthe expert." Gen. Elec. Co. v. Joiner, 522 U.S.136, 146 (1997). The objective of the gatekeepingrequirement is "to make certain that an expert,whether basing testimony upon professionalstudies or personal experience, employs in thecourtroom the same level of intellectual rigor thatcharacterizes the practice of an expert in therelevant field." Kumho Tire Co., Ltd. v.Carmichael, 526 U.S. 137, 152 (1999).

The written report requirement of FED. R. CIV.P. 26(a)(2)(B) enhances the trial court'sgatekeeper function by requiring the fulldisclosure of expert opinions at the outset of thelitigation. The Rule states:

The [expert] report shall contain a completestatement of all opinions to be expressed andthe basis and reasons therefor; the data orother information considered by the witness informing the opinions; any exhibits to be usedas a summary of or support for the opinions;[and] the qualifications of the witness . . . .

An expert's report must be "detailed andcomplete" in order "to avoid the disclosure of'sketchy and vague' expert information, as was thepractice under the former rule." Sierra Club, LoneStar Chap. v. Cedar Point Oil Co., Inc., 73 F. 3d546, 571 (5th Cir. 1996).

Preliminary reports do not satisfy the expressterms of Rule 26. See Sherrod v. Lingle, 223 F.3d605, 613 (7th Cir. 2000). The report must be suchthat opposing counsel is not forced to depose anexpert in order to avoid ambush at trial. Moreover,the report must be sufficiently complete so as toshorten, or decrease the need for, expertdepositions and thus to conserve resources. SeeSylla-Sawdon v. Uniroyal Goodrich Tire Co., 47F.3d 277, 284 (8th Cir. 1995). Rule 37(c)(1) givesteeth to the expert witness report requirement byforbidding the use at trial of any informationrequired to be disclosed by Rule 26(a) that is not


properly disclosed. See Yeti By Molly, Ltd. v.Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9thCir. 2001).

In theory, Rule 26(a)(2)(B) does not allowgame playing. Accordingly, armed with full andcomplete expert witness reports, an AssistantUnited States Attorney can assess early onwhether the malpractice suit is a good candidatefor summary judgment. If review of plaintiff'sexpert reports leads to the conclusion that theexpert testimony would be inadmissible underDaubert standards, counsel should move forsummary judgment, asserting the absence ofadmissible evidence to support plaintiff's claim.After all, it is plaintiff's burden, as the proponentof the evidence, to demonstrate admissibility tothe satisfaction of the court under FED. R. EVID .104(a). See 509 U.S. at 592 n. 10.

Moreover, Rule 56(b) provides that adefending party may move with or withoutsupporting affidavits for summary judgment in theparty's favor. See FED.R.C IV.P. 56(b) (emphasisadded). The Supreme Court held in Celotex Corp.v. Catrett, 477 U.S. 317, 323 (1986), that there is"no express or implied requirement in Rule 56that the moving party support its motion withaffidavits or other similar materials negating theopponent's claim." Because the United States doesnot bear the ultimate burden of proof in a medicalmalpractice case, on summary judgment it needonly point to the absence of admissible evidencein support of plaintiff's claim. See e.g., Lust v.Merrell Dow Pharms., Inc., 89 F.3d 594, 598 (9thCir. 1996) (finding that the trial court granteddefense motion for summary judgment based onlack of admissible causation evidence withoutdetermining whether expert affidavits filed withdefendant's motion would have been admissible).

An expert's opinion will be inadmissible whenthe expert concedes that his or her opinion isbased upon a naked conclusion, guess work, orunsupported facts. For example, when the expertadmits that she has no scientific support for thetheory that ibuprofen caused plaintiff's conditionof renal failure, testifying: "'What I'm giving younow is kind of a curb side opinion. If . . . you wereasking me to give you an analytical, scientificopinion, then, I would have to research it, and Ihave neither the time nor the inclination to dothat.'" Porter v. Whitehall Labs., Inc., 9 F.3d 607,614 (7th Cir. 1993). The opinion of a coroner isinadmissible when he testifies that decedent diedfrom a cardiac arrest caused by a bacterialinfection, but admits that he performed no test forthe bacteria during autopsy, nor did he find anyevidence of the bacteria at issue (Listeria) duringautopsy. See Verzwyvelt v. St. Paul Fire & Marine

Ins. Co., 175 F. Supp. 2d 881, 886 (W.D. La.2001). Likewise, a doctor's opinion that ingestionof Viagra caused decedent's heart attack will beexcluded under Rule 702 as unreliable when: (1)his theory of causation has not been tested; (2) hecannot cite to any studies in support of hisconclusion; and (3) his opinion "is not supportedby any real world observations or experimentalscrutiny." Brumley v. Pfizer, Inc., 200 F.R.D. 596,602 (S.D. Tex. 2001).

In moving for summary judgment, counselshould first require plaintiff to survive a challengeto the inadmissibility of plaintiff's expert medicaland scientific testimony. Second, the plaintiffshould be required to survive a challenge to thesufficiency of his evidence to prove the elementsof his claim. It is important to distinguish betweenthe threshold requirements for admissibility of theplaintiff's evidence and whether the evidence issufficient to meet plaintiff's burden of proof.

Courts have recognized that the issue ofadmissibility of an expert's opinion is separate anddistinct from the issue of whether the testimony issufficient to withstand a motion for summaryjudgment. See Munoz v. Orr, 200 F.3d 291, 300(5th Cir.), cert. denied, 531 U.S. 812 (2000) ("We. . . review the district court's exclusion ofplaintiffs' expert's evidence and all discovery-related rulings for abuse of discretion, and thenreview de novo the grant of summary judgmentbased on the evidence properly before the districtcourt."); Cortés-Irizarry v. Corporacîon InsularDe Seguros, 111 F.3d 184, 188 (1st Cir. 1997) ("Ifproffered expert testimony fails to cross Daubert'sthreshold for admissibility, a district court mayexclude that evidence from consideration whenpassing upon a motion for summary judgment.").Only materials in the pretrial record that wouldhave been admissible evidence can be consideredon summary judgment. See Michaels v. Avitech,Inc., 202 F.3d 746, 751 (5th Cir.), cert. denied,531 U.S. 926 (2000).

The admissibility finding is critical because adistrict court's decision to admit or exclude experttestimony is not reversed absent a clear abuse ofdiscretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136,146 (1997). A sufficiency determination, on theother hand, will be reviewed de novo . It is theresponsibility of the trial judge, in the firstinstance, to perform the gatekeeping function as toexpert opinions. This "is not an empty exercise;appellate courts are not well-suited to exercisingthe discretion reserved to district courts." Goebelv. Denver and Rio Grande W. R.R. Co., 215 F.3d1083, 1089 (10th Cir. 2000).


There are a number of ways to obtain a rulingthat plaintiff's expert evidence is inadmissible.One is to move in limine to strike the reports ofplaintiff's experts. See Domingo ex rel. Domingov. T.K., 276 F.3d 1083, 2002 W L 538800 (9th Cir.2002) (affirming district court exclusion ofplaintiff's medical expert testimony as unreliableunder Daubert because his conclusion did notfollow from his analysis); Cooper v. Smith &Nephew, Inc., 259 F.3d 194 (4th Cir. 2001)(affirming trial court's grant of defense motion toexclude expert's testimony on medical causationnot because expert was unqualified, but becausehis method of performing a differential diagnosiswas unreliable).

Another way to obtain a ruling that plaintiff'sexpert evidence is inadmissible is to move forsummary judgment. See Ralston v. Smith &Nephew Richards, Inc., 275 F.3d 965 (10th Cir.2001) (recognizing that orthopedic surgeon andoncologist admitted she was not qualified totestify regarding warnings on intramedullarynailing device); Rosen v. Ciba-Geigy Corp., 78F.3d 316 (7th Cir. 1996) (recognizing thatcardiologist was unable to adequately demonstratethat a nicotine patch worn for three days by asmoker could cause a heart attack).

A third way to exclude plaintiff's expertevidence is to request an evidentiary hearing. SeeIn re TMI Litigation, 199 F.3d 158, 159 (3d Cir.2000), modifying 193 F.3d 613 (3d Cir. 1999),cert. denied, 530 U.S. 225 (2000). A district courtis not required, however, to hold an actual hearingto comply with Daubert. See Nelson v. TennesseeGas Pipeline Co., 243 F.3d 244, 249 (6th Cir.),cert. denied, 122 S.Ct. 56 (2001). Nor is itrequired to hold an in limine hearing beforegranting summary judgment. See Oddi v. FordMotor Co., 234 F.3d 136, 154 (3d Cir. 2000), cert.denied, 532 U.S. 921 (2001). The record, in anyevent, whether or not a hearing is held, must be"adequate to the task." Jahn v. Equine Servs.,PSC, 233 F.3d 382, 393 (6th Cir. 2000). Therewill be instances in which defense counsel willneed to depose plaintiff's expert in order toprovide the court with the record it needs to makean adequate Daubert determination.

Daubert objections must be timely made. Ifmade too late, the objection can be waived. SeeMacsenti v. Becker, 237 F.3d 1223, 1233-34 (10thCir.), cert. denied, 533 U.S. 950 (2001). InMacsenti, the Tenth Circuit held that a defendantforfeited a Daubert objection by raising it at theclose of trial, depriving the proponent of theevidence of the opportunity to offer supportingproof, putting the trial judge at a disadvantage inthat she was not alerted to the need of stating

Daubert/Kumho findings, and impairing appellatereview due to the inadequacy of the record.Counsel is not to "sandbag" the opposition withDaubert concerns. See Alfred v. Caterpillar, Inc.,262 F.3d 1083, 1087 (10th Cir. 2001), cert.denied, 122 S.Ct. 1298 (2002). "The truth-seekingfunction of litigation is best served by an orderlyprogression, and because Daubert generallycontemplates a 'gatekeeping' function, not a'gotcha' junction," a district court may reject atardy Daubert motion. Id.

If timely made, however, a recent amendmentto FED. R. EVID . 103(a) will preserve the Daubertobjection for appellate review once the districtcourt makes a definitive ruling on the record,admitting or excluding the evidence. TheAdvisory Committee Notes to FED. R. EVID . 103comment: "[w]hen the ruling is definitive, arenewed objection or offer of proof at the time theevidence is to be offered is more a formalism thana necessity." See FED. R. EVID . 103 AdvisoryCommittee Note at 358 (West, 2002).

In summary, if the reports of plaintiff'sexperts do not live up to Daubert standards,consider moving for summary judgment. If thetrial court, as gatekeeper, excludes the opposingexpert's opinions as inadmissible under Daubertand plaintiff appeals, the trial court's evidentiaryruling will be reviewable under the deferentialabuse of discretion standard. Make sure the courtis provided with a record that is adequate forDaubert review. Make a timely Daubertobjection. A well-planned evidentiary andprocedural challenge to plaintiff's evidence canresult in the failure of plaintiff's case, prior to thehistorical "battle of the experts."


Nor should plaintiff get a second chance. Asthe Supreme Court has observed, "Since Daubert,. . . parties relying on expert evidence have hadnotice of the exacting standards of reliability suchevidence must meet." Weisgram v. Marley Co.,528 U.S. 440, 455 (2000). "It is implausible tosuggest, post-Daubert, that parties will initiallypresent less than their best expert evidence in theexpectation of a second chance should their firsttry fail." Id. "[F]airness does not require that aplaintiff, whose expert witness testimony has beenfound inadmissible under Daubert, be afforded asecond chance to marshal other expert opinionsand shore up his case before the court mayconsider a defendant's motion for summaryjudgment." Nelson, 243 F. 3d at 250.�

ABOUT THE AUTHOR

�Mary Leach is a Senior Trial Counsel in theCivil Division of the Justice Department, FederalTort Claims Act Staff. She has been in the TortsBranch for the last 20 years, defending theUnited States in suits arising out of medicalmalpractice and products liability.

Recent Development: An ArgumentThat Fed. R. Civ. P. 45 Does NotAuthorize Nonparty Subpoenas ToThe Federal GovernmentTerry HenrySenior Counsel, Federal Programs BranchCivil Division

The area of law arising out of federallitigation between private parties, and concerningsubpoenas and requests for evidence directed tononparty federal agencies and employees,continues to develop in exciting and interestingways. For example, in the last three years theDepartment has successfully persuaded certainfederal courts that nonparty subpoenas directed tofederal agencies and employees implicatesovereign immunity and that the AdministrativeProcedure Act ("APA"), 5 U.S.C. §§ 701-706(1996), provides the only applicable waiver of thatimmunity. The courts have disagreed, however,over whether application of the APA's waiver ofimmunity entitles the government to a deferential,

APA standard of review. Compare U.S. Envtl.Prot. Agency v. Gen. Elec. Co., 197 F.3d 592,596-99 (2d Cir. 1999), modified in part, 212 F.3d689 (2d Cir. 2000) (applying APA waiver ofimmunity but declining to decide standard ofreview); and COMSAT Corp. v. Nat’l ScienceFound., 190 F.3d 269, 277-78 (4th Cir. 1999)(applying APA standard of review); and Linder v.Calero-Portocarrero, 251 F.3d 178, 180-81(D.C.Cir. 2001) (applying APA waiver but not APAstandard of review).

The broad range of developments in this fieldis beyond the scope of this article, but one recentdevelopment of interest to Department attorneyshandling civil matters warrants discussion.Sovereign immunity and APA considerationsaside, the D.C. Circuit has raised the issue ofwhether the Federal Rules of Civil Procedure, bytheir terms, authorize the issuance of nonparty


subpoenas to federal agencies and employees incases where the Federal Government is not aparty. We have argued that the Rules do notauthorize such subpoenas because the term"person," as used in FED. R. CIV. P. 45, does notinclude the Federal Government. See Al Fayed v.CIA , 229 F.3d 272, 276 (D.C. Cir. 2000); Linderv. Calero-Portocarrero , 251 F.3d 178, 180-81(D.C. Cir. 2001). No court has yet decided thisissue. If the matter is ultimately resolvedfavorably to the government, however, it couldalter the typical manner in which federal litigantsobtain information from the government in casesin which the government is not a party.

The issue of the applicability of Rule 45 to theFederal Government when it is not a party arosein the context of cases involving 28 U.S.C. § 1782(1982), which authorizes a district court to issue asubpoena directing a person to produce evidencefor use in proceedings of a foreign or internationaltribunal. In one case, a notable party sought suchsubpoenas to obtain information from variousfederal agencies for use in the French proceedinginvestigating the death of Princess Diana. Theagencies, represented by the DOJ Civil Division,responded with the argument that the statute didnot authorize the subpoenas because the FederalGovernment was not a "person," within themeaning of the statute, to which subpoenas couldbe directed. See In re Al Fayed, 210 F.3d 421, 425(4th Cir. 2000); Al Fayed v. CIA , 229 F.3d 272,273-76 (D.C. Cir. 2000). The Fourth Circuit didnot decide the issue. The D.C. Circuit, however,accepted the government's argument, basing itsdecision on the venerable principle of statutoryinterpretation that the term "person" does notinclude "a sovereign government absentaffirmative evidence" to the contrary. Al Fayed v.CIA , 229 F.3d at 274. In the course of decidingthe case, the Court of Appeals questioned whetherthe term "person," as used in FED. R. CIV. P. 45,likewise did not include the Federal Governmentwhen the government was not a party. Id. at 275-76.

A few months later the Rule 45 issue surfacedagain, this time in the course of an appeal from asubpoena enforcement proceeding againstnonparty federal agencies. The appeal washandled by the office of the United StatesAttorney for the District of Columbia. The D.C.Circuit panel on the case invited the parties onappeal to address the issue of whether "person," asused in Rule 45, included the United States. SeeLinder, 251 F.3d at 180. The United StatesAttorney's office, in consultation with DOJ's CivilDivision, responded with a brief, arguing that theterm "person" in Rule 45 did not include the

federal sovereign when it was not a party to thesuit. The court then promptly determined that thegovernment had waived the issue by failing toraise the matter in district court. Id. at 181-82.Accordingly, the court declined to decide theissue, noting only that reexamination of pastassumptions that Rule 45 includes the FederalGovernment might be needed. Id. at 181.

Indeed, such reexamination is warranted. Aspreviously noted, Rule 45 provides that asubpoena may be directed to a "person," and thelong-standing rule of statutory interpretationprovides that the term "person" does not includethe sovereign "absent affirmative evidence of suchan inclusory intent." Al Fayed v. CIA , 229 F.3d at274-75. See also, Int’l Primate Prot. League v.Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 82-83(1991) ("conventional reading of ‘person' may . . .be disregarded if ‘[t]he purpose, the subjectmatter, the context, the legislative history, [or] theexecutive interpretation of the statute . . . indicatean intent, by the use of the term, to bring state ornation within the scope of the law'") (quotingUnited States v. Cooper Corp., 312 U.S. 600, 605(1941)). Thus, absent affirmative evidence that thegovernment was meant to be included, Rule 45would not include Federal Government within thescope of proper subpoena recipients. See AlFayed , 229 F.3d at 275-76.

No such affirmative evidence exists withrespect to the use of "person" in Rule 45 when thegovernment is not a party to the case. Rule 45,itself, does not mention the government as aproper nonparty witness. See Dictionary Act, 1U.S.C. § 1 (1997)(defining "person" in any act ofCongress as including individuals, corporations,companies, associations, firms, partnerships,societies, and joint stock companies, unlesscontext indicates otherwise). The AdvisoryCommittee notes on Rule 45 also fail to mentionthe government as a proper nonparty witness.

The term "governmental agency" is used inthe context of discovery in FED. R. CIV. P. 30, butthe evidence with respect to that rule fails tocompel a conclusion that Rule 45 includes theFederal Government as a proper subpoenarecipient. Rule 30(a)(1) indicates that personssubject to deposition under the Federal Rulesinclude nonparties and provides that witnessesmay be subpoenaed for deposition under Rule 45.In addition, FED. R. CIV. P. 30(b)(6) provides thata litigant may name a governmental agency in asubpoena for purposes of obtaining a deposition.Nonetheless, for several reasons, this does notrequire that the term "person" in Rule 45 includenonparty federal agencies. Rule 30(b)(6)establishes a special procedure for a narrow


circumstance, that of obtaining testimony givenon behalf of an organizational entity by anindividual designated by the entity. It is aprocedure that applies both to otherwise properparty depositions (i.e., those conducted by"notice") and nonparty depositions (i.e., thoseconducted by subpoena), and permits a specifictype of "naming" to go on in the notice orsubpoena– that of naming an organization versusa specific individual.

Prior to the addition of Rule 30(b)(6) in 1970,some courts had determined that the litigantseeking a deposition could not put the burden onan organization to decide who would appear onbehalf of the organization. See FED. R. CIV. P.30(b)(6) Advisory Committee note (1970). Thepurpose of Rule 30(b)(6) was to obviatedifficulties experienced by litigants in designatingthe appropriate organization officer for deposition,including situations in which specific officerswere deposed in turn, with each disclaimingpersonal knowledge of facts clearly known topersons in the organization and, thereby, to theorganization itself. Id. Thus, the Rule was notintended, and should not be understood, to extendthe reach of Rule 45. Rather, it merely permitted anew naming practice with respect to subpoenasotherwise proper under Rule 45. Further, becauseRule 30(b)(6) was not adopted until 1970, morethan thirty years after Rule 45, Rule 30(b)(6) canadd nothing about the intent of the drafters ofRule 45 with respect to the reach of the term"person."

In any event, to the extent that any ambiguityconcerning the reach of Rule 45 exists because ofRule 30(b)(6), such ambiguity should not beconsidered affirmative evidence of intent toinclude the sovereign within the scope of propersubpoena recipients under Rule 45.

Although no court has yet decided the issue,the position that Rule 45 does not authorizenonparty subpoenas against the FederalGovernment, having been raised in the Lindercase, now may be argued in any appropriate case.The issue is obviously an important one. If it isdetermined by the courts that Rule 45 does notauthorize nonparty subpoenas against thegovernment, a federal litigant's recourse to obtainevidence from a nonparty federal agency wouldbe to pursue either a request under the Freedom ofInformation Act ("FOIA"), 5 U.S.C. § 552 (1996),or a request for evidence under the agency's so-called Touhy regulations, see, e.g., 28 C.F.R.§§ 16.21-.29 (2002)(DOJ Touhy regulations). Anyfinal agency decision under the Touhy regulationswould be subject to APA review in a separatelawsuit against the agency. See, e.g., Cleary,

Gottlieb, Steen & Hamilton v. Dep’t of Health &Human Serv., 844 F. Supp. 770 (D.D.C. 1993).While the FOIA and Touhy request options arecurrently available to federal litigants, manyinstead choose to issue Rule 45 subpoenas andpursue subpoena enforcement proceedings againstuncooperative agencies. This latter option wouldbecome unavailable if Rule 45 is determined notto authorize nonparty subpoenas against theFederal Government.

The argument that Rule 45 does not authorizenonparty subpoenas against Federal Governmentagencies, also applies with respect to subpoenasagainst agency employees. This is because theeffect of a subpoena against a federal employeefor official information falls on the government.Such a subpoena seeks, in essence, to compel thegovernment to produce evidence. See Boron OilCo. v. Downie, 873 F.2d 67, 70-71(4th Cir. 1989).

Also note that in Linder, the government didnot argue that the government was not subject tothe Federal Rules (including Rule 45 whereappropriate) when the government is a party to acase. To the contrary, when the government is aparty to a case, there is reason to believe thatCongress, in waiving sovereign immunity topermit suit and authorizing the Supreme Court toadopt the Federal Rules of Civil Procedure,intended that the rules, at least as a general matter,apply to the government. See Al Fayed v. CIA ,229 F.3d 272, 276 (D.C. Cir. 2000); United Statesv. Procter & Gamble Co., 356 U.S. 677, 681(1958) (finding that a governmental entity as aparty litigant is subject to the rules of discovery tosame extent as any other litigant). Thus,presumably, when a federal agency is a party infederal court, subpoenas for depositions of theagency's employees typically would bepermissible when they are otherwise appropriate.

One further aspect of the argument should benoted. The argument is not that the FederalGovernment has sovereign immunity from anynonparty subpoena. The interpretive presumptionregarding the term "person" may have roots insovereign immunity considerations, but theinterpretive presumption regarding "person"applies even in the absence of sovereign immunityconcerns. See Al Fayed v. CIA , 229 F.3d at 275.Indeed, several courts have determined thatsovereign immunity with respect to federalsubpoena proceedings has been waived by Section702 of the APA. See EPA v. Gen. Elec. Co., 197F.3d at 596-99; COMSAT Corp., 190 F.3d at 277-78; Linder, 251 F.3d at 180-81. Thus, whether ornot these courts are correct, any sovereignimmunity argument the government may havetypically would be based on the terms of the


waiver contained in the APA. Compare GrandStreet Artists v. Gen. Elec. Co., 22 F. Supp. 2d299, 300 (S.D.N.Y. 1998) (finding that terms ofAPA's waiver of immunity in 5 U.S.C. § 702 didnot include a subpoena enforcement proceeding;rather, independent lawsuit was required), withcontrary decision on appeal, EPA v. Gen. Elec.Co., 197 F.3d at 599 (holding that the APAwaives sovereign immunity for Rule 45 subpoenaproceeding). Such a sovereign immunity argumentis separate and distinct from an argument thatRule 45 does not authorize the issuance ofsubpoenas to nonparty federal agencies andemployees because the government is not a"person" within the meaning of the rule. The Rule45 argument is one of statutory interpretation. SeeLinder, 251 F.3d at 181-82 (stating that the issueis one of statutory interpretation, which can bewaived if not raised, in some form, in districtcourt).

The argument concerning the nonapplicabilityof Rule 45 to nonparty federal agencies is still inits infancy as no court has yet ruled on the issue.Even so, the issue, having been raised at thecourt's invitation in Linder, can now beconsidered for argument in matters in which theFederal Government is not a party and is servedwith nonparty subpoenas. The discussion of theRule 45 issue in this article, of course, is meantmerely as an exploration of the background andsome of the particulars of the issue, for the benefitand guidance of those litigating on the FederalGovernment's behalf. It is not intended to, anddoes not bind the government in any way, or giverise to any enforceable right in any person.Assistant United States Attorneys are encouragedto direct questions concerning the argument, or itsapplication, to the author or to Tom Byron of theDOJ Civil Division Appellate Staff.

Over the years, legal analysis concerning thesubpoenaing of information from nonparty federalagencies and employees has progressed in severalcircuits from vague notions of the inherent powersof the courts, see Northrop v. McDonnellDouglas, 751 F.2d 395, 398 n.2 (D.C. Cir. 1984)(noting that court had assumed for years thatsovereign immunity had no application tosubpoena against government), to a more rigorousconsideration of sovereign immunity and otherprinciples defining and regulating therelationships among the branches of governmentand private litigation, see, e.g., COMSAT Corp.,190 F.3d at 277-78. The argument that FED. R.CIV. P. 45 does not authorize subpoenas to nonparty federal agencies and employees is butanother aspect of that development. Resolution of

this issue could have important implications forthe future.�


ABOUT THE AUTHOR

�Terry Henry serves as Senior Counsel in theFederal Programs Branch of the Civil Division ofthe Department of Justice in Washington, D.C. Hehas been an attorney in the Federal ProgramsBranch since 1988 and specializes in Touhyregulation issues and in defending against third-party subpoenas directed to federal agencies andemployees.a

The Employment Discrimination TaskForceRichard G. LepleySupervisor, Employment Discrimination TaskForceCivil Division

I. Introduction

The Justice Department has created a newEmployment Discrimination Task Force tosupport Assistant United States Attorneys andTrial Attorneys in one of the fastest growing areasof public sector litigation. As befitting a subjectthat cuts across the Civil and Civil RightsDivisions, and is an ever-increasing drain on theresources of United States Attorneys Offices(USAOs), the project was jointly conceived andwill bring the resources of all interested entitiestogether to serve the litigation needs of all. Thisarticle examines the growth of employmentdiscrimination litigation that spurred the creationof the Task Force, reviews previous efforts toaddress the problem, and describes the TaskForce's formation and how it intends to help front-line litigators with their employmentdiscrimination cases.

II. The employment discrimination litigationexplosion

Significant changes in employmentdiscrimination legislation in the early 1990sincreased the number, cost, and complexity ofemployment discrimination cases filed. InNovember of 1991, Congress enacted substantiveamendments to Title VII of the Civil Rights Actof 1964, 42 U.S.C. § 2000e. The 1991 legislationallows for plaintiffs to recover compensatorydamages for mental anguish and other "pain andsuffering" up to $300,000, and no longer limits

awards to past and prospective lost wages. TheAct also adds the right to a jury trial and recoveryof attorneys’ fees. These changes have increasedthe number of private sector attorneys willing tohandle employment discrimination cases, as wellas increased the amount of time those attorneysare willing to devote to these cases.

The cases are not only numerous, but alsotime intensive. The USAOs Civil Chiefs WorkingGroup (CCWG) reports that from FY93 to FY99,pending defensive civil rights cases in USAOsgrew 41 percent, from 1,989 to 3,019. In FY2000,the first year in which employment discriminationdefense cases were broken out separately fromcivil rights cases, those cases alone totaled 2,749.The Federal Programs Branch reports thatemployment discrimination cases in the Branchdemand, on average, far more attorney time thanthe other matters it handles. In FY98, for example,the average time spent on employmentdiscrimination matters in the Branch was 474hours per case, which is more than twice theoverall per case average of 210 hours. In the firsthalf of FY99, the hours reported in this areaexceeded 15,000, representing an increase of morethan 35 percent over the past fiscal year.

There is little reason to expect the growth inemployment litigation to slow down. The GeneralAccounting Office reports a 56 percent increase inannual filings of Equal Employment OpportunityCommission (EEOC) administrative complaintsfrom 1991 to 1997, which in turn, caused adramatic increase in the backlog of pendingEEOC cases. EEOC has recently predicted that,provided it can increase the number ofadministrative judges, it will increase its annualhearings another 59 percent from 10,016 in 1997


to 15,950 in 2002. The obvious result will befurther increases in the numbers of cases theUnited States will be called upon to defend infederal district court.

Finally, the declining litigation supportprovided by the client agencies as a result ofdownsizing over the past decades, and thesimultaneous surge in administrative EqualEmployment Opportunity (EEO) matters thatattorneys must personally handle, exacerbates thesqueeze on Department resources.

III. Previous efforts to support employmentdiscrimination litigation

In May 1997, former Civil Division AssistantAttorney General Frank Hunger and formerExecutive Office of United States Attorneys(EOUSA) director Carol DiBattiste sent amemorandum to all USAOs outlining several jointprojects. A monograph was to be drafted by theCivil Division with assistance from AUSAsassigned to four-week details. The Civil Divisionalso commenced issuing periodic newsletterssummarizing landmark court decisions, explainingDepartment policy changes, and suggestingpractice tips suited for employment discriminationcases. Training at the National Advocacy Center(NAC) on employment discrimination wasincreased to two courses a year with the FederalPrograms Branch and USAOs jointly developingthe courses and providing presenters.

These initiatives had mixed success. Thechief impediment was the lack of sufficient staffdedicated to their completion. While the trainingand newsletters provided support to the USAOs,the monograph never moved beyond thecompletion of several draft chapters written byFederal Programs Branch attorneys and AUSAson detail to the EOUSA. With Federal ProgramsBranch attorneys and AUSAs busy litigatingactive dockets, the time-intensive monograph wasultimately shelved.

IV. Creation of the EmploymentDiscrimination Task Force

As previous efforts flagged, the CCWGpersistently pressed for recognition of theburgeoning employment discrimination caseload.Recognizing the need for assistance butconstrained by limited resources, Civil DivisionAssistant Attorney General Robert McCallumproposed an innovative solution that seeks toleverage existing resources to perform moreproductively by providing a new centralizedsupport structure. He enlisted the help of the CivilRights Division and obtained approval from theAssociate Attorney General to create a Task Force

that would combine the expertise of bothDivisions while focusing on providing assistancein defensive employment discrimination litigation.

As explained in a joint memorandum datedMarch 14, 2002, from Assistant AttorneysGeneral McCallum of Civil and Ralph F. Boyd,Jr. of Civil Rights and distributed to all USAOs,the Task Force has been charged with five specificresponsibilities.

1. Consolidate and coordinate efforts to provideadvice to Department attorneys handlingemployment discrimination cases;

2. Develop monographs to serve as a road map fordefensive employment discrimination litigation;

3. Develop a protocol for identifying andpresenting policy issues that may affect bothoffensive and defensive efforts of the twoDivisions and the USAOs;

4. Assist in providing training to all Departmentattorneys in the employment discrimination area;and

5. Directly handle select cases in the employmentdiscrimination area.

The Task Force structure reflects its variedmissions. Three experienced attorneys have beenassigned to the Task Force to draft themonographs, provide training and advice, conductspecial litigation, and develop protocols forresolving policy issues within the Department.Two attorneys from the Civil Rights Division'sEmployment Litigation Section are detailed toserve on the Task Force to handle defensivelitigation and to share the expertise andexperience the Civil Rights Division has acquiredin the employment discrimination area. AnotherFederal Programs Branch attorney will be detailedto serve in the Civil Rights Division to overseeaffirmative litigation and to share expertiseobtained in handling defensive cases. The TaskForce will be chaired by a Director from FederalPrograms and the day-to-day activities will besupervised by an Assistant Director from FederalPrograms.

Several reasons exist to expect substantialbenefits from the Task Force's work. The creationof a centralized clearinghouse for information andexpertise in employment discrimination litigationis a novel attempt to leverage the expertise of theDivision and experienced AUSAs in the field.However, the key difference is the dedication ofattorneys solely to this effort. Three Task Forcemembers will be working full time on completingmonographs on employment discriminationstatutes, providing training and advice, and


developing policy issues. Although they will alsohandle some litigation, the focus initially will beto complete the monographs and get them in thehands of the AUSAs.

V. Coordination between Main Justice and theUSAOs

The Employment Discrimination Task Forceis the product of the combined efforts of both theUSAOs and Main Justice and its mission is toserve both groups. Although staffed by Civil andCivil Rights Division attorneys, by far its largestconstituency is the many AUSAs throughout thenation that handle employment discriminationmatters. The general scope of the Task Force'sduties have been set, but to ensure that itcontinues to focus its efforts on the priorities ofUSAOs, several avenues for direct and regularfeedback have been established. In addition toreports to the CCW G at its scheduled meetings,the Task Force managers will consult withliaisons at EOUSA and the CCWG. In addition,the Task Force invites USAOs to contact itdirectly with comments, suggestions, andrequests.

VI. First assignments for the Task Force

A Task Force steering committee held aninitial meeting on March 29, 2002, and its firstmembers were assigned in April. The Task Forceis to be fully staffed by the end of M ay. Below isa description of the tasks it is tackling first:

A. Employment DiscriminationMonographs. The Task Force will developmonographs for each major employmentdiscrimination statute (Title VII, theRehabilitation Act, the Age Discrimination inEmployment Act, and the Family and MedicalLeave Act) to serve as a road map for defensiveemployment discrimination litigation. Later,monographs on other relevant statutes such as theBack Pay Act and mixed cases implicating partsof the Civil Service Reform Act may be produced.Chapters will be disseminated as they arecompleted and reviewed and will be distributedboth in hard copy and online.

The monographs are not intended to replicatedigests currently in the legal libraries, such asLindemann and Grossman's EmploymentDiscrimination Law. Such duplicative detailwould be time consuming to develop and serve nouseful purpose. Instead, the monographs willfocus on information and precedent most useful toattorneys handling federal sector cases andhighlight the differences between the statutesapplying to federal and private sector employees.The goal is to craft a useful practitioner's guide

that points out possible litigation pitfalls, suggestspossible avenues for addressing issues unique toemployment discrimination cases, and identifiesDepartment policies that may not be apparentfrom a survey of relevant precedents. Themonographs will contain an overview of relevantlegal standards, more detailed treatment ofevolving areas such as what constitutes an adverseaction, and suggestions of source materials formore information.

An outline of chapters covering relevantsubjects for Title VII and the Rehabilitation Acthas been prepared and reviewed by personnel inthe Civil and Civil Rights Divisions and theCCWG. Since the monographs are designedprimarily for use by Department attorneyshandling defensive litigation, the plan is to let theCCWG, as representative for the USAOs,determine what subjects are completed first. Thefirst statute to be addressed will be Title VII, andthe first subjects to be addressed are retaliation,sexual harassment, and jury trial considerations.

To create the most useful and practical toolpossible, the input of many senior andexperienced Department attorneys is required.Practical litigation tips are learned throughexperience and cannot be found in the library.While the Task Force will take the laboring oar inpreparing the initial drafts of chapters and revisingthem in accordance with comments, AUSAs withexperience handling employment discriminationcases are welcome to volunteer to serve on acommittee that reviews draft monograph chaptersand makes suggestions.

B. Assistance to Department attorneys onindividual cases. The Task Force will consolidateand coordinate efforts to provide assistance toDepartment attorneys handling employmentdiscrimination cases. It will become the primarysource for informal advice on Title VII anddisability discrimination matters. It will also takeover publication of the Civil Division'sEmployment Discrimination Newsletter, whichwill continue to provide seasonable updates onrecent Supreme Court and appellate decisions,practice tips, and other relevant information.

One of the initiatives that promises to providevaluable assistance is the development of acentralized, organized cache of samples, tailoredfor employment discrimination litigation, on suchtopics as administrative exhaustion prerequisitesand other common jurisdictional issues, discoveryrequests, deposition checklists, motions in limine,voir dire questions, and jury instructions.Currently, the Civil Division Appellate Staff, theFederal Programs Branch, the Civil Rights


Division, and the W estmate® database, maintainbrief banks, reserved for exclusive Departmentuse with circuit-specific sections sponsored byEOUSA. With the advent of more powerful andflexible electronic search tools, coordination andconsolidation of these disparate databases shouldpay significant dividends in eased access andincreased variety of previously prepared writtenmaterials.

C. Training for employment discriminationcases. The Task Force will also provide supportfor regional and national training. Once fullyoperational, the Task Force will provide speakerson employment discrimination issues at therequest of a USAO. The Task Force will alsocoordinate Main Justice participation in nationaltraining. Through the National Advocacy Center(NAC), the Department currently offers twonational courses a year: a basic employmentdiscrimination course and an advancedemployment discrimination course.

The basic course is a four-day survey of theissues presented in employment discriminationcases. It includes overviews of Title VII, theRehabilitation Act, and the Age Discrimination inEmployment Act, and lectures and workshops onthe administrative process for federal employmentdiscrimination claims, sexual harassment, adverseactions, statistics used in Title VII cases,settlement issues, expert witnesses, current issuesin appellate cases, opening and closing statements,remedies, jury issues, alternative disputeresolution, pre- and post-trial issues, and ethics.

The advanced course adopts a clinicalapproach that provides experienced attorneysopportunities to observe and conduct the majorparts of an employment discrimination jury trial.Small groups study the unique issues presented byemployment discrimination cases such asemployee plaintiffs, adverse governmentwitnesses, and specialized experts. Students studya real case, present opening and closingstatements, and conduct direct and cross-examination of government and adverse fact andexpert witnesses. The highlight of the course isthe jury trial, conducted in abbreviated format,before a jury of citizens hired for that purpose.Students not only watch and participate inpresenting the case to the jury, but also getimmediate feedback as they watch the jurydeliberate. As those who have taken the courseattest, it is sobering experience for all counselwho must prepare and try cases to civil juries.

For the first time this fall, on September 18-19, a one and one-half day symposium for seniorexperienced employment discrimination attorneys

will be held at the NAC. Although the agenda hasnot been finally set, it will include a review of theTask Force's efforts to that point and discussionsabout future assignments.

D. Identifying and presenting for resolutionpolicy issues in the employment discriminationarea. The Task Force is charged withcoordinating the Department's consideration ofpolicy issues that may affect both offensive anddefensive efforts of the two Divisions and theUSAOs. In the past, there has not been a formalprocedure for coordinating positions at the trialcourt level, and sometimes cross-cutting issueswere not identified, and alternate positions setforth, until recommendation memoranda weresubmitted to the Solicitor General's Office alongwith draft appellate briefs. This practice hascaused some decisions to be made hastily, withlimited input from affected offices, andoccasionally required the Department to modifyarguments, which sometimes resulted in a wasteof scarce trial level resources.

The Task Force is not empowered to resolveconflicts regarding policy positions of theDepartment. The Solicitor General is the arbiter ofissues arising in litigation, and the AssociateAttorney General is the Attorney General'sdesignated supervisory authority on civillitigation. Each Division remains responsible forpresenting its views to those decision-makers.Likewise, the authority delegated to theUnited States Attorneys to handle litigation intheir respective districts remains the same. TheTask Force's role will be to serve as aclearinghouse for the most current information onDepartment's evolving policies in employmentdiscrimination cases and as a catalyst to presentunresolved issues to the decision-makers.

Since the vast bulk of cases are handled in theUSAOs, their active participation to identify novelor controversial issues arising in litigation isessential. The Task Force can only coordinate theresolution of issues of which it is aware. AUSAsare encouraged to advise the Task Force if a casepresents questions worthy of specialconsideration. Prompt identification of novelissues is essential to allow meaningful review andconsideration. Similarly, the Task Force will belooking, on occasion, for cases that present aspecific issue for which further review is sought,such as issues in which Circuits are in conflict. Inthese instances, the Task Force will communicateits interest through periodic newsletters, itsliaisons, or memoranda, to all USAOs throughEOUSA.


E. Handle litigation. With its limited staff,the Task Force is unable to make even a smalldent in the tidal wave of employmentdiscrimination litigation washing over theDepartment. However, its staff will handle a fewspecial cases that present first impression orimportant policy issues as just described or otherunique challenges. In addition, the FederalPrograms Branch will continue to handle classactions and other time-intensive employmentdiscrimination cases. Initially, the work on themonograph and brief banks will limit the TaskForce's direct participation in litigation. Itslitigation role is expected to increase as progressis made on other tasks.

VII. How to help

The Task Force is now in operation andworking to serve Department attorneys handlingemployment discrimination cases. AUSAs andDivision attorneys can help in several ways. Asmentioned above, volunteers to help review andedit monograph chapters (or even prepare initialdrafts if time allows) are welcome. SeveralAUSAs with employment discriminationexperience have already stepped forward, andtheir assistance is most appreciated. Everyattorney can be watching for cases that presentcontroversial or novel issues or an issue the TaskForce may later identify as being of particularinterest. Finally, comments and suggestions onways the Task Force can assist front-line attorneysare always invited.

Contact with the Task Force can beaccomplished through several channels.Communication can be forwarded torepresentatives on the CCWG, directly to the Task

Force CCW G liaison Deputy Chief Joan Garner(E.D .Pa.), through EOUSA (through VirginiaHoward), or directly to the undersigned. Together,we can accomplish the Task Force's mission ofmore efficient and efficacious representation offederal entities in employment discriminationlitigation.�

ABOUT THE AUTHOR

�Richard G. Lepley is the Supervisor of theEmployment Discrimination Task Force. He hasserved as a Trial Attorney in the Federal ProgramsBranch for five years, as a Senior Trial Counselfor five years, and for the last seven years asAssistant Director for Disability Litigation. In thisposition he supervises defensive disabilityemployment litigation under the RehabilitationAct, disability benefits claims under the SocialSecurity Act, and challenges under the Family andMedical Leave Act. He can be reached at (202)514-3492 or [email protected]


Notes


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