No. 00-1853 

In the Supreme Court of the United States 

AKOS SWIERKIEWICZ, PETITIONER 

v. 

SOREMA N.A. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT 

BRIEF FOR THE UNITED STATES AND THE 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 
AS AMICI CURIAE SUPPORTING PETITIONER 

NICHOLAS M. INZEO 

Acting Deputy General 

Counsel 

PHILLIP B. SKLOVER 

Associate General Counsel 

JOHN F. SUHRE 

Attorney 
Equal Employment 

Opportunity Commission 
Washington, D.C. 20507 
THEODORE B. OLSON 
Solicitor General 

Counsel of Record 

RALPH F. BOYD, JR. 

Assistant Attorney General 

PAUL D. CLEMENT 

Deputy Solicitor General 

PATRICIA A. MILLETT 

Assistant to the Solicitor 

General 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514–2217 

QUESTION PRESENTED 

Whether a complaint in an employment discrimina- 
tion suit under Title VII of the Civil Rights Act of 1964, 
42 U.S.C. 2000e et seq., or the Age Discrimination in 
Employment Act of 1967, 29 U.S.C. 621 et seq., must 
plead specific facts establishing a prima facie case of 
discrimination under McDonnell Douglas Corp. v. 
Green, 411 U.S. 792 (1973). 

(I) 

TABLE OF CONTENTS 

Page 

Interest of the United States ...................................................... 
1 

Statement ........................................................................................ 2 

Summary of Argument ................................................................. 
4 

Argument: 

Petitioner’s complaint satisfies Federal Rule of Civil 

Procedure 8 because it identifies a claim for which 

relief could be granted and provides fair notice of the 

factual circumstances giving rise to the claim ...................... 

6 

A. Petitioner’s complaint provides fair notice of 

his claim for relief ........................................................... 

6 

B. Proof establishing the elements of a prima facie 

case is not required ......................................................... 

11 

C. This case does not implicate the special considera- 
tions governing pleadings in qualified immunity 

cases .................................................................................. 20 

Conclusion ....................................................................................... 23 

TABLE OF AUTHORITIES 

Cases: 

ACLU Found. v. Barr, 952 F.2d 457 (D.C. Cir. 1991) .... 

10 

Baldwin County Welcome Ctr. v. Brown, 466 U.S. 

147 (1984) ................................................................................. 

20 

Bennett v. Schmidt, 153 F.3d 516 (7th Cir. 1998) ............ 

10, 13, 

18, 19, 20 
Berkovitz v. United States, 486 U.S. 531 (1988) ............... 

7 

Bivens v. Six Unknown Named Agents of Fed. 

Bureau of Narcotics, 403 U.S. 388 (1971) ........................ 

21 

Butz v. Economou, 438 U.S. 478 (1978) ............................. 

23 

Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93 

(2d Cir. 2001) .......................................................................... 

14 

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .................... 10, 13 

(III) 

IV 

Cases—Continued: Page 

Conley v. Gibson, 355 U.S. 41 (1957) .......... 

6, 7, 8, 9, 12, 16, 20 

Crawford-El v. Britton, 523 U.S. 574 (1998) ..................... 

21, 22 

Estelle v. Gamble, 429 U.S. 97 (1976) ................................ 

19 

De Loach v. Crowley’s, Inc., 128 F.2d 378 (5th Cir 

1942) ......................................................................................... 16 

Dioguardi v. Durning, 139 F.2d 774 (2d Cir. 1944) ........ 

8, 17 

Fitzgerald v. Codex Corp., 882 F.2d 586 (1st Cir. 

1989) ......................................................................................... 8 

Furno Constr. Corp. v. Waters, 438 U.S. 567 (1978) ....... 

12 

Gilbane Bldg. Co. v. Federal Reserve Bank of Rich- 
mond, 80 F.3d 895 (4th Cir. 1996) ...................................... 

15 

Gilligan v. Jamco Dev. Corp., 108 F.3d 246 

(9th Cir. 1997) ......................................................................... 

19 

Haines v. Kerner, 404 U.S. 519 (1972) ............................... 

9, 12 

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ........................ 

21, 22 

International Controls Corp. v. Vesco, 490 F.2d 1334 

(2d Cir.), cert. denied, 417 U.S. 932 (1974) ........................ 

20 

Jackson v. City of Columbus, 194 F.3d 737 (6th Cir. 

1999) ......................................................................................... 13 

Judge v. City of Lowell, 160 F.3d 67 (1st Cir. 

1998) ......................................................................................... 22 

Krieger v. Fadely, 211 F.3d 134 (D.C. Cir. 2000) ............. 

8, 13 

Leatherman v. Tarrant County Narcotics Intelligence 

& Coordination Unit, 507 U.S. 163 (1993) ............ 

6, 12, 20, 22 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 

(1973) .................................................................................. 

4, 11, 14 

McKennon v. Nashville Banner Publ’g Co., 513 

U.S. 352 (1995) ........................................................................ 

19 

Mitchell v. Forsyth, 472 U.S. 511 (1985) ............................ 

21 

O’Connor v. Consolidated Coin Caterers Corp., 517 

U.S. 308 (1996) ........................................................................ 

14 

Ortez v. Washington County, 88 F.3d 804 (9th Cir. 

1996) ......................................................................................... 13 

Powell v. Ridge, 189 F.3d 387 (3d Cir.), cert. 

denied, 528 U.S. 1046 (1999) ................................................ 13, 18 

V 

Cases—Continued: Page 

Price Waterhouse v. Hopkins, 490 U.S. 228 

(1989) ........................................................................................ 

19, 20 

Reeves v. Sanderson Plumbing Prods., 530 US. 

133 (2000) ............................................................................... 

11, 14 

Ring v. First Interstate Mortgage, Inc., 984 F.2d 

924 (8th Cir. 1993) ................................................................. 

13 

Roe v. Aware Women Ctr. for Choice, Inc., 253 F.3d 

678 (11th Cir. 2001) ................................................................ 

13, 20 

Saucier v. Katz, 121 S. Ct. 2151 (2001) .............................. 

21 

Scheuer v. Rhodes, 416 U.S. 232 (1974) ....................... 

7, 10, 12 

Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995) ................ 

22-23 

Siegert v. Gilley, 500 U.S. 226 (1991) .................................. 

22 

Smith v. Nixon, 807 F.2d 197 (D.C. Cir. 1986) ................. 

22 

Sparrow v. United Air Lines, Inc., 216 F.3d 1111 

(D.C. Cir. 2000) ...................................................................... 

10, 13 

Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 

248 (1981) ................................................................................. 

12 

Weston v. Pennsylvania, 251 F.3d 420 (3d Cir. 

2001) ......................................................................................... 10 

Statutes and rules: 

Age Discrimination in Employment Act of 1967, 

29 U.S.C. 621 et seq. ............................................................... 

1, 2 

29 U.S.C. 623(a)(1) ............................................................ 

2 

29 U.S.C. 633a .................................................................... 

2 

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e 

et seq. ........................................................................................ 

1, 2 

42 U.S.C. 2000e-2(a)(1) .................................................... 

2 

42 U.S.C. 2000e-16 (1994 & Supp. V 1999) ................... 

2 

2 U.S.C. 1311(a)(2) .................................................................... 

2 

42 U.S.C. 1983 ............................................................................ 

12, 23 

Fed. R. Civ. P.: 

Rule 1 .................................................................................. 

2, 15 

Rule 7 .................................................................................. 

23 

Rule 7(a) .............................................................................. 

20, 22 

Rule 8 ............................................................... 1, 2, 5, 9, 10, 15 

VI 

Rules—Continued: Page 

Rule 8(a) .......................................................................... 

2, 6, 12 

Rule 8(a)(1) ......................................................................... 

6 

Rule 8(a)(2) ............................................... 

4, 5, 8, 10, 13, 16, 17 

Rule 8(a)(3) ......................................................................... 

6 

Rule 8(e)(1) ........................................................................ 2, 15-16 

Rule 8(f) .............................................................................. 

2 

Rule 9(b) ............................................................................. 

9 

Rule 12(b)(6) ................................................................... 

4, 7, 10 

Rule 12(e) ............................................................................ 

20, 22 

Rule 56(f) ............................................................................ 

19 

Miscellaneous: 

“Claim or Clause of Action: A Discussion of the Need 

for Amendment of Rule 8(a)(2) of the Federal Rules of 

Civil Procedure,” 13 F.R.D. 253 (1952) ............................. 

17, 18 

R. Millar, Civil Procedure of the Trial Court in 

Historical Perspective (1952) ...................................... 

15, 17, 18 

2 J. Moore, Moore’s Federal Practice and Procedure 

(2001) ........................................................................................ 17 

5 C. Wright & A. Miller, Federal Practice and Pro- 
cedure (2d ed. 1990) ....................................................... 15, 16, 17 

In the Supreme Court of the United States 

No. 00-1853 

AKOS SWIERKIEWICZ, PETITIONER 

v. 

SOREMA N.A. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT 

BRIEF FOR THE UNITED STATES AND THE 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 
AS AMICI CURIAE SUPPORTING PETITIONER 

INTEREST OF THE UNITED STATES 

This case presents an important question concerning 
the application of Federal Rule of Civil Procedure 8, 
which outlines the required content of a complaint, to 
employment discrimination claims arising under Title 
VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et 
seq., and the Age Discrimination in Employment Act 
of 1967, 29 U.S.C. 621 et seq. The Attorney General 
and the Equal Employment Opportunity Commission 
(EEOC) share responsibility for enforcing Title VII 
against public and private employers. In addition, the 
EEOC has primary responsibility for administering and 
enforcing the Age Discrimination in Employment Act. 
The Court’s decision in this case thus is likely to affect 

(1) 

2 

the enforcement responsibilities of the EEOC and the 
Attorney General. Furthermore, Title VII and the Age 
Discrimination in Employment Act apply to the federal 
government in its capacity as the nation’s largest em- 
ployer. 42 U.S.C. 2000e-16 (1994 & Supp. V 1999); 29 
U.S.C. 633a; 2 U.S.C. 1311(a)(2). 

STATEMENT 

1. This case concerns the adequacy of a complaint 
alleging employment discrimination in violation of Title 
VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e 
et seq., and the Age Discrimination in Employment Act 
of 1967 (ADEA), 29 U.S.C. 621 et seq. In relevant part, 
Title VII makes it unlawful for an employer to “dis- 
charge any individual, or otherwise to discriminate 
against any individual with respect to his compensation, 
terms, conditions, or privileges of employment, because 
of such individual’s race, color, religion, sex, or national 
origin.” 42 U.S.C. 2000e-2(a)(1). The ADEA, in nearly 
identical terms, makes it unlawful for an employer to 
discharge or otherwise discriminate against an in- 
dividual “because of such individual’s age.” 29 U.S.C. 
623(a)(1). 

Federal Rule of Civil Procedure 8 governs the con- 
tent of pleadings in all suits of a civil nature in the 
United States district courts. See Fed. R. Civ. P. 1, 8. 
Rule 8(a) directs that a complaint initiating a civil 
action “shall contain” a statement of jurisdiction, a de- 
mand for relief, and “a short and plain statement of the 
claim showing that the pleader is entitled to relief.” 
The rule further provides that “[e]ach averment of a 
pleading shall be simple, concise, and direct. No techni- 
cal forms of pleading or motions are required.” Fed. R. 
Civ. P. 8(e)(1). Lastly, Rule 8(f) instructs that “[a]ll 

3 

pleadings shall be construed as to do substantial jus- 
tice.” 

2. Petitioner is a United States citizen of Hungarian 
ancestry. J.A. 24a; Pet App. 2a. Respondent is a New 
York reinsurance company owned and controlled by a 
French parent company. Ibid. Petitioner began work- 
ing for respondent in April 1989 as a Senior Vice Pre- 
sident and Chief Underwriting Officer. Ibid. In April 
1997, respondent fired petitioner. J.A. 27a; Pet. App. 
3a. 

Petitioner filed suit under Title VII and the ADEA 
claiming that respondent unlawfully terminated him 
“on account of his age and national origin.” J.A. 28a. 
According to his ten-page complaint, petitioner had 
performed his job “in a satisfactory and exemplary 
manner.” J.A. 25a. Nevertheless, in February 1995, 
respondent demoted petitioner and transferred his 
responsibilities to another employee who was both a 
French national and 16 years younger, even though 
that employee “was far less experienced and less quali- 
fied” than petitioner. Ibid. Respondent’s chief execu- 
tive officer demoted petitioner because “he wanted to 
‘energize’ the underwriting department,” a statement 
that petitioner understood as “clearly implying that 
plaintiff was too old for the job.” Ibid.; Pet. App. 2a. 
The complaint alleges that this demotion was “on 
account of [petitioner’s] national origin (Hungarian) and 
his age (he was 49 at the time).” J.A. 25a. The com- 
plaint further alleges that a number of other inex- 
perienced individuals were hired to assume petitioner’s 
duties, all of whom were either French nationals or 
significantly younger than petitioner. J.A. 26a. In 
addition, respondent “isolated” petitioner and “ex- 
cluded [him] from business decisions and meetings” 
following the demotion. Ibid. 

4 

In April 1997, “following two years of ongoing dis- 
crimination on account of his national origin and age,” 
J.A. 26a, petitioner sent respondent’s chief executive 
officer a memorandum requesting a severance package 
comparable to that offered to other executives who 
were terminated. Ibid. Respondent instead offered 
petitioner the choice of resigning without any benefits 
or being fired. J.A. 27a. When petitioner refused to 
resign, respondent fired him. Ibid. According to the 
complaint, respondent “had no valid basis to fire 
[petitioner]” and his “age and national origin were moti- 
vating factors in [respondent’s] decision to terminate his 
employment.” Ibid.; see also J.A. 28a-29a. 

The district court granted respondent’s motion to 
dismiss the complaint for failure to state a claim under 
Federal Rule of Civil Procedure 12(b)(6), on the ground 
that “[petitioner] has not adequately alleged a prima 
facie case, in that he has not adequately alleged circum- 
stances that support an inference of discrimination.” 
Pet. App. 9a. 

3. The court of appeals affirmed. Pet. App. 1a-4a. 
The court held that, “[t]o plead” national origin or age 
discrimination, a plaintiff’s complaint must allege (i) 
membership in a protected class, (ii) qualification for 
the job at issue, (iii) an adverse employment action, and 
(iv) “circumstances that give support to an inference of 
discrimination.” Id. at 3a (citing McDonnell Douglas 
Corp. v. Green, 411 U.S. 792, 802 (1973)). The court con- 
cluded that all of petitioner’s allegations “are insuffi- 
cient as a matter of law to raise an inference of discrimi- 
nation.” Pet. App. 3a. 

SUMMARY OF ARGUMENT 

Petitioner’s complaint properly states a claim for 
relief under Federal Rule of Civil Procedure 8(a)(2). 

5 

That Rule requires only that a complaint contain “a 
short and plain statement of the claim showing that the 
pleader is entitled to relief.” This Court has held that 
the Rule is satisfied if the complaint provides the 
defendant fair notice of the character of the claim and 
the grounds upon which it rests. Petitioner’s complaint 
gave such notice. It repeatedly asserted that 
respondent had discriminated against petitioner in his 
employment on the basis of national origin and age, and 
it identified the specific adverse employment actions 
giving rise to the claim. Rule 8(a)(2) requires no more. 

The court of appeals’ requirement that employment 
discrimination complaints include facts demonstrating a 
prima facie case is fundamentally flawed. First, the 
rule erroneously conflates the fair notice owed a de- 
fendant at the outset of the litigation with the stan- 
dards governing the plaintiff’s presentation of proof in 
court. The court’s holding also cannot be reconciled 
with this Court’s decisions generally rejecting the 
imposition of heightened pleading standards under 
Rule 8. More fundamentally, the requirement that a 
complaint allege evidence of a prima facie case 
disregards the entire purpose and history of Rule 8. 
The Federal Rules of Civil Procedure were intended to 
simplify and expedite the pleading stage of litigation, so 
that parties could more expeditiously proceed to 
resolving litigation on the merits. To that end, in 1952, 
the Advisory Committee on the Civil Rules specifically 
considered and rejected an amendment of Rule 8 that 
would require plaintiffs to allege, as the Second Circuit 
did here, all of the facts constituting the cause of action. 
The Second Circuit’s regime thus resurrects the very 
prolix, technical, and fact-intensive pleading procedures 
that the modern rules deliberately eschewed. 

6 

This case, involving statutory claims against a pri- 
vate employer, obviously does not raise any qualified 
immunity issue. On a number of occasions, this Court 
has reserved the question whether particularized plead- 
ing rules or procedures are necessary to effectuate the 
qualified immunity doctrine’s protection against dis- 
covery and trial. Nothing in the Court’s resolution of 
this case should implicate the distinct pleading issues 
involved in qualified immunity litigation. 

ARGUMENT 

PETITIONER’S COMPLAINT SATISFIES FEDERAL 
RULE OF CIVIL PROCEDURE 8 BECAUSE IT IDENTI- 
FIES A CLAIM FOR WHICH RELIEF COULD BE 
GRANTED AND PROVIDES FAIR NOTICE OF THE 
FACTUAL CIRCUMSTANCES GIVING RISE TO THE 
CLAIM 

A. Petitioner’s Complaint Provides Fair Notice Of 

His Claim For Relief 

Under Federal Rule of Civil Procedure 8(a), a com- 
plaint initiating a civil action need only contain “a short 
and plain statement of the claim showing that the 
pleader is entitled to relief.”1 The Rule “mean[s] what 
it sa[ys].” Leatherman v. Tarrant County Narcotics 
Intelligence & Coordination Unit, 507 U.S. 163, 168 
(1993). A claimant need not “set out in detail the facts 
upon which he bases his claim.” Conley v. Gibson, 355 
U.S. 41, 47 (1957). Rather, the complaint need only 

1 Rule 8(a) also requires a complaint to contain “a short and 
plain statement of the grounds upon which the court’s jurisdiction 
depends,” and “a demand for judgment for the relief the pleader 
seeks.” Fed. R. Civ. P. 8(a)(1), (3). It is undisputed that peti- 
tioner’s complaint satisfies those requirements. See J.A. 22a-23a, 
29a-30a. 

7 

provide the defendant “fair notice of what the plaintiff’s 
claim is and the grounds upon which it rests.” Ibid. 
Accordingly, in evaluating the sufficiency of a com- 
plaint, the court’s role “is necessarily a limited one,” 
confined to evaluating “not whether a plaintiff will ulti- 
mately prevail,” Scheuer v. Rhodes, 416 U.S. 232, 236 
(1974), but “whether the claimant is entitled to offer 
evidence to support the claims,” ibid.2 

Taking the allegations of the complaint as true (see 
Berkovitz v. United States, 486 U.S. 531, 540 (1988)), 
petitioner’s complaint satisfies that standard. The com- 
plaint repeatedly identifies the claim for relief as one of 
employment discrimination on the basis of national 
origin and age and cites the specific state and federal 
statutory provisions under which relief is sought. J.A. 
22a (“This is an employment discrimination action” for 
“the violation of his rights under Title VII * * *[,] the 
Age Discrimination in Employment Act * * *,” and 
state law.), 23a (describing EEOC complaint), 25a 
(alleging that plaintiff was demoted “on account of his 
national origin (Hungarian) and his age (he was 49 at 
the time)”), 26a (complaining of “two years of ongoing 
discrimination on account of his national origin and 
age”), 27a (asserting that “age and national origin were 
motivating factors in [respondent’s] decision to termi- 
nate his employment”), 28a (alleging violation of 
petitioner’s “rights under Title VII and the ADEA by 
discharging him from employment on account of his age 

2 This case does not involve the common, alternative basis for 
a motion to dismiss a complaint under Federal Rule of Civil Pro- 
cedure 12(b)(6)—the contention that, accepting the factual allega- 
tions of the complaint as true, a legal defect in the plaintiff’s case 
(such as a constitutional challenge to the underlying law or a 
dispute over the proper construction of a statute) precludes re- 
covery. 

8 

and national origin”), 28a-30a (alleging violations of 
Title VII, the ADEA, and two state laws, and seeking 
relief authorized by those laws).3 

The complaint, moreover, provides fair notice of the 
factual circumstances giving rise to petitioner’s claims. 
The complaint identifies the specific adverse employ- 
ment actions at issue, provides a general time frame for 
the alleged violations, and offers sufficient factual 
context to permit the defendant to identify the events 
and participants implicated by the litigation. See J.A. 
24a-27a. 

In Conley, supra, this Court had “no doubt” that a 
complaint containing similar allegations of discrimina- 
tory treatment “adequately set forth a claim and gave 
the respondents fair notice of its basis.” 355 U.S. at 48; 
see also Complaint, Rec. Tr. 3-16, Conley v. Gibson, 355 
U.S. 41 (1951) (No. 7) (alleging failure of union properly 
to represent the plaintiffs and asserting that race 
discrimination motivated the discriminatory treat- 
ment). As in Conley, once petitioner’s complaint put 
the defendant on notice of the legal and factual bases of 
his claim for relief, “the Federal Rules * * * d[id] not 
require [him] to set out in detail the facts upon which he 
bases his claim.” 355 U.S. at 47.4 

3 Rule 8(a)(2) does not require a plaintiff to “plead law” or to 
identify a particular legal theory in the complaint. Krieger v. 
Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000); see also Fitzgerald v. 
Codex Corp., 882 F.2d 586, 589 (1st Cir. 1989) (“[U]nder Fed. R. 
Civ. P. 8 it is not necessary that a legal theory be pleaded in the 
complaint.”). The complaint need only “set[] forth sufficient factual 
allegations to state a claim showing that he is entitled to relief 
under some viable legal theory.” Fitzgerald, 882 F.2d at 589 (in- 
ternal quotation marks omitted). 

4 See also Dioguardi v. Durning, 139 F.2d 774, 775 (2d Cir. 
1944) (where complaint, “however inartistically,” fairly “disclose[s] 

9 

Indeed, given the content of the ten-page complaint, 
neither the court of appeals nor respondent ever 
seriously contended that it lacked adequate notice of 
the nature and character of petitioner’s complaint or 
the events giving rise to the litigation. Nor has it been 
suggested that the complaint is too ambiguous, vague, 
or confusing to permit respondent to answer the 
charges and initiate a defense. To the contrary, respon- 
dent’s prompt production of evidence that it believes 
counters the merits of petitioner’s claims—viz., peti- 
tioner’s April 1997 memorandum to respondent’s chief 
executive officer seeking severance benefits (J.A. 34a- 
36a)—belies any claim that respondent lacks “fair 
notice” of the claims against it. 

The essence of respondent’s objection, instead, is 
that, in light of the complaint’s conclusory allegations of 
discriminatory motive, petitioner will not be able to 
prove his case on the merits. Rule 9(b), however, ex- 
pressly permits plaintiffs to aver generally “[m]alice, 
intent, knowledge, and other condition[s] of mind of a 
person.” Moreover, nothing in Rule 8 compels plaintiffs 
to establish in their complaints that they not only have 
a tenable claim for relief, but also have the better of the 

his claims,” the plaintiff may not “properly be deprived of his day 
in court”), cited with approval in Conley, 355 U.S. at 46 n.5, and 
Haines v. Kerner, 404 U.S. 519, 521 (1972); cf. Fed. R. Civ. P., 
App., Form 5 (complaint for goods sold and delivered is sufficient 
to state a claim for relief if it says: “Defendant owes plaintiff __ 
dollars for goods sold and delivered by plaintiff to defendant 
between June 1, 1936 and December 1, 1936”), id., Form 9 (com- 
plaint for negligence sufficient if it identifies the date and location 
of an accident and alleges only that “defendant negligently drove a 
motor vehicle against plaintiff who was then crossing said high- 
way” and identifies the injuries suffered); see generally id., Forms 
3-14. 

10 

argument on the facts. See Scheuer, 416 U.S. at 236 
(“[I]t may appear on the face of the pleadings that a 
recovery is very remote and unlikely but that is not the 
test.”); see also Celotex Corp. v. Catrett, 477 U.S. 317, 
327 (1986) (Rule 8(a)(2) is not a “tool[] by which factu- 
ally insufficient claims or defenses could be isolated and 
prevented from going to trial.”). Nor is a motion to dis- 
miss for failure to state a claim, under Federal Rule of 
Civil Procedure 12(b)(6), an appropriate “device for 
testing the truth of what is asserted or for determining 
whether a plaintiff has any evidence to back up what is 
in the complaint.” ACLU Found. v. Barr, 952 F.2d 457, 
467 (D.C. Cir. 1991).5 

It is, of course, possible for a plaintiff to plead himself 
out of a cause of action by alleging facts that con- 
clusively foreclose relief. See, e.g., Sparrow v. United 
Air Lines, Inc., 216 F.3d 1111, 1116 (D.C. Cir. 2000) (“In 
some cases, it is possible for a plaintiff to plead too 
much: that is, to plead himself out of court by alleging 
facts that render success on the merits impossible.”). 
That would occur if, for example, the complaint 
revealed that petitioner’s age was 35 and thus that he 
did not fall within the class protected by the ADEA. 

5 Numerous courts of appeals have recognized the limited 
demands that Rule 8 imposes on plaintiffs. See, e.g., Weston v. 
Pennsylvania, 251 F.3d 420, 430 (3d Cir. 2001) (even though 
plaintiff’s allegations were not “compelling,” his complaint “suf- 
fice[d] to state a Title VII claim”); Sparrow v. United Air Lines, 
Inc., 216 F.3d 1111, 1117 (D.C. Cir. 2000) (complaint was sufficient 
under Rule 8(a)(2) even though it was “doubtful” whether plaintiff 
will be able to establish that defendant’s explanation was pre- 
textual); Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998) 
(complaint does not fail to state a “claim upon which relief can be 
granted” simply “because it does not set forth a complete and 
convincing picture of the alleged wrongdoing”). 

11 

The allegations in petitioner’s complaint that a 
discriminatory demotion and “two years of ongoing 
discrimination on account of his national origin and age” 
(J.A. 26a) precipitated his discharge, however, cannot 
fairly be construed as foreclosing all possibility of relief. 

B. Proof Establishing The Elements Of A Prima 

Facie Case Is Not Required 

The court of appeals dismissed the complaint because 
petitioner failed to plead the elements of a prima facie 
case under Title VII and the ADEA. In McDonnell 
Douglas Corp. v. Green, 411 U.S. 792 (1973), this Court 
identified four elements that allow a plaintiff to 
establish a prima facie case of disparate treatment 
under Title VII through the use of circumstantial 
evidence. Specifically, a prima facie case under Mc- 
Donnell Douglas entails a showing that (i) the plaintiff 
is a member of a protected class (such as a racial 
minority); (ii) he is qualified for the position in question; 
(iii) he suffered an adverse employment action, and (iv) 
after the adverse action, the employer continued to 
seek applicants sharing the complainant’s general 
qualifications. See id. at 802; see also Reeves v. Sander- 
son Plumbing Prods., 530 U.S. 133, 142 (2000) (assum- 
ing, without deciding, that the McDonnell Douglas 
framework applies to ADEA claims). The court of 
appeals fundamentally erred in transporting the con- 
cept of a prima facie case to the pleading stage of 
litigation, for three reasons. 

First, the court’s test confuses pleading standards 
and evidentiary burdens of proof. The McDonnell 
Douglas framework does not purport to prescribe the 
proper content of a complaint. Rather, it “set[s] forth 
the basic allocation of burdens and order of pre- 
sentation of proof ” applicable in an employment dis- 

12 

crimination case. Texas Dep’t of Cmty. Affairs v. 
Burdine, 450 U.S. 248, 252 (1981) (emphasis added). As 
such, the prima facie case provides “a sensible, orderly 
way to evaluate the evidence in light of common ex- 
perience as it bears on the critical question of discri- 
mination.” Furnco Constr. Corp. v. Waters, 438 U.S. 
567, 577 (1978) (emphasis added). 

The test for the sufficiency of a complaint at the 
pleading stage is not one of evidentiary production or 
persuasion, but simply of notification. A complaint 
suffices under Rule 8(a) if it affords the defendant “fair 
notice” of what the plaintiff’s “claim is and the grounds 
upon which it rests.” Conley, 355 U.S. at 47. The 
proper question to ask at the pleading stage thus is not 
whether the plaintiff has satisfied some threshold level 
of persuasiveness, but whether the plaintiff has identi- 
fied a claim for relief under which he “is entitled” to go 
forward and “offer evidence to support the claim[].” 
Scheuer, 416 U.S. at 236; see also Haines v. Kerner, 404 
U.S. 519, 520 (1972) (question at motion to dismiss stage 
is whether the allegations in the complaint, “however 
inartfully pleaded, are sufficient to call for the op- 
portunity to offer supporting evidence”). 

Second, the court of appeals’ rule is difficult to recon- 
cile with this Court’s consistent rejection of heightened 
pleading standards for complaints. In Leatherman v. 
Tarrant County Narcotics Intelligence and Coordina- 
tion Unit, supra, this Court reversed a court of appeals’ 
requirement that plaintiffs plead “with factual detail 
and particularity” cases against municipalities under 42 
U.S.C. 1983. 507 U.S. at 167. The Court explained that 
“it is impossible to square” such a “heightened pleading 
standard” with “the liberal system of ‘notice pleading’ 
set up by the Federal Rules.” Id. at 168. See also 
Conley, 355 U.S. at 47 (rejecting requirement that a 

13 

complaint “set forth specific facts to support its general 
allegations of discrimination”); cf. Celotex Corp., 477 
U.S. at 327 (“with the advent of ‘notice pleading,’ the 
motion to dismiss seldom fulfills th[e] function” of 
dispensing with “factually insufficient claims”). 

The 
enhanced pleading requirement imposed on 
employment discrimination plaintiffs by the court of 
appeals here suffers the same infirmity. 

In a similar vein, courts of appeals generally have 
held, in a variety of litigation contexts, that a complaint 
need not articulate facts supporting each and every 
element of the claim for relief. See, e.g., Roe v. Aware 
Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th 
Cir. 2001) (“[T]he liberal ‘notice pleading’ standards em- 
bodied in Federal Rule of Civil Procedure 8(a)(2) do not 
require that a plaintiff specifically plead every element 
of a cause of action.”) (suit against abortion providers 
under Freedom of Access to Clinic Entrances Act); 
Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000) 
(“complaints need ‘not plead law or match facts to every 
element of a legal theory’ ”) (Privacy Act suit). With 
respect to employment discrimination claims in parti- 
cular, most courts of appeals to address the issue like- 
wise have held that a complaint need not allege facts 
sufficient to establish a prima facie case of 
discrimination. Sparrow, 216 F.3d at 1115; Powell v. 
Ridge, 189 F.3d 387, 394 (3d Cir.), cert. denied, 528 U.S. 
1046 (1999); Ortez v. Washington County, 88 F.3d 804, 
808 (9th Cir. 1996); Ring v. First Interstate Mortgage, 
Inc., 984 F.2d 924, 926-927 (8th Cir. 1993); accord 
Bennett, 153 F.3d at 518 (“ ‘I was turned down for a job 
because of my race’ is all a complaint has to say.”); but 
see Jackson v. City of Columbus, 194 F.3d 737, 751 (6th 
Cir. 1999). 

14 

The court of appeals’ emphasis on the McDonnell 
Douglas factors is particularly problematic because 
those factors do not constitute the elements of a dis- 
crimination claim in any strict sense, nor are they the 
exclusive means by which a plaintiff may establish a 
prima facie claim of discrimination. As this Court has 
cautioned, the McDonnell Douglas framework “is not 
necessarily applicable in every respect in differing 
factual situations.” McDonnell Douglas, 411 U.S. at 
802 n.13. In fact, the McDonnell Douglas prima facie 
case does not apply to disparate impact claims,6 and a 
plaintiff with direct, rather than circumstantial evi- 
dence of disparate treatment, may establish his prima 
facie case with a different showing. Further, this Court 
has as yet to hold that the McDonnell Douglas frame- 
work applies to the ADEA at all. Reeves, 530 U.S. at 
142. 

Instead, the inquiry into the existence of a prima 
facie case in all cases reduces to whether the plaintiff 
has produced “evidence adequate to create an inference 
that an employment decision was based on an illegal 
discriminatory criterion.” O’Connor v. Consolidated 
Coin Caterers Corp., 517 U.S. 308, 312 (1996) (emphasis 
and brackets omitted). That standard is appropriate for 
evaluating a record at the summary judgment or trial 
stage, when discovery has developed and clarified the 
parties’ claims. But it would be precipitate to under- 
take such an inquiry before discovery commences. The 
parties’ arguments and the court’s analysis would have 

6 To establish a prima facie case of disparate impact, the 
plaintiff must (1) identify a policy or practice, (2) demonstrate that 
a disparity exists, and (3) establish a causal relationship between 
the two. See Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 
93, 111 (2d Cir. 2001). 

15 

to anticipate what facts and evidence the discovery 
process might unearth. As a result, motions to dismiss 
based on the plaintiff’s alleged inability to demonstrate 
a prima facie case could frequently prove to be little 
more than dress rehearsals for the true battle to come 
at the summary judgment stage, further postponing the 
“just, speedy, and inexpensive determination” (Fed. R. 
Civ. P. 1) of cases on their merits. 

Third and most significantly, the court’s rule under- 
mines the core purpose of Rule 8, which is to simplify 
and demystify the art of pleading. One of the “basic 
philosophies of the federal rules” is “simplicity of 
procedure.” 5 C. Wright & A. Miller, Federal Practice 
and Procedure § 1182, at 12 (2d ed. 1990). Earlier 
federal pleading regimes imposed a variety of technical 
requirements on complaints and placed great weight on 
the factual content of the plaintiff’s allegations. See 
Gilbane Bldg. Co. v. Federal Reserve Bank of Rich- 
mond, 80 F.3d 895, 900 (4th Cir. 1996) (discussing the 
former “code pleading’s formalistic, purely factual 
approach” and the “murky code-pleading requirement 
that a claimant plead ultimate facts and avoid pleading 
evidence and conclusions of law”).7 

Under the modern federal rules, however, pleadings 
“are not an end in themselves.” 5 Federal Practice and 
Procedure § 1182, at 13. “[T]echnical forms of pleading 
are not required.” Id. § 1202, at 68; see also Fed. R. 

7 See also 5 Federal Practice and Procedure § 1202, at 68-69 
(under code pleading, “[t]he complaint not only gave notice of the 
nature of plaintiff ’s case but also was required to state the facts 
constituting the cause of action”; “[f]ailure to incorporate an 
essential allegation might lead to a speedy end of the litigation by 
way of demurrer or a motion to dismiss”); R. Millar, Civil 
Procedure of the Trial Court in Historical Perspective 175 (1952) 
(discussing disadvantages of the code pleading system). 

16 

Civ. P. 8(e)(1). Rather, Rule 8 is “designed to discour- 
age battles over mere form of statement and to sweep 
away the needless controversies which the [prede- 
cessor] codes permitted,” so that parties can proceed 
directly and more efficiently to resolving cases on their 
merits. Id. § 1201, at 67 n.11 (Advisory Comm. 1955 
Report); see also Conley, 355 U.S. at 48 (“The Federal 
Rules reject the approach that pleading is a game of 
skill in which one misstep by counsel may be decisive to 
the outcome.”). The modern rules thus dramatically 
eased the pressure on plaintiffs to include particular- 
ized and regimented factual allegations in their com- 
plaints. 

“Under the Rules . . . a case consists not in the 
pleadings, but the evidence, for which the pleadings 
furnish the basis. Cases are generally to be tried on 
the proofs rather than the pleadings.” Thus, the 
function of a pleading in federal practice is to inform 
a party of the nature of the claims and defenses 
being asserted against him and the relief demanded 
by his adversary. 

5 Federal Practice and Procedure § 1182, at 13 (quoting 
De Loach v. Crowley’s, Inc., 128 F.2d 378 (5th Cir. 
1942)) (footnotes omitted).8 

In fact, the Advisory Committee on the Civil Rules 
expressly rejected the approach employed by the 
Second Circuit here. In 1952, the Advisory Committee 
refused to adopt a proposed amendment to Rule 8(a)(2) 
that would have added a requirement that the state- 

8 See also 5 Federal Practice and Procedure § 1202, at 69 
(“The only function left to be performed by the pleadings alone is 
that of notice. Thus, pleadings under the rules simply may be a 
general summary of the party’s position that is sufficient to advise 
the other party of the event being sued upon.”). 

17 

ment of the claim “contain the facts constituting a cause 
of action.” See “Claim or Cause of Action: A Discus- 
sion of the Need for Amendment of Rule 8(a)(2) of the 
Federal Rules of Civil Procedure,” 13 F.R.D. 253 
(1952).9 That proposal was made in the wake of de- 
cisions—including, ironically, a particularly contro- 
versial decision by the Second Circuit—holding that, 
under Rule 8(a)(2), “there is no pleading requirement of 
stating facts sufficient to constitute a cause of action.” 
Dioguardi v. Durning, 139 F.2d 774, 775 (2d Cir. 1944); 
see also “Claim or Cause of Action,” 13 F.R.D. at 254 

n.1, 261. 
In rejecting the proposed amendment, the Com- 
mittee explained that the current practice of permitting 
general descriptions of the claim “adequately sets forth 
the characteristics of good pleading” and “does away 
with the confusion resulting from the use of ‘facts’ and 
‘cause of action.’ ” 

5 Federal Practice and Procedure, 
§ 1201, at 67 n.11. As one opponent of the proposed 
amendment cautioned: 

Once again we will find ourselves engaged in the 
time-consuming and frustrating process typified by 
the interminable attacks upon litigants’ claims upon 
the ground that, under common-law concepts, a 
cause of action has not been stated. Again the 
technical forces will be marshalled for the never 
ending exploitation of all the common-law devices to 
drag out the pleading stage of litigation and delay 
the litigants’ day in court. 

9 See also 5 Federal Practice and Procedure § 1216, at 
164; 2 J. Moore, Moore’s Federal Practice and Procedure 
§ 8App.01[3] (2001); Millar, supra, at 190-193 (discussing debate 
over whether Rule 8 requires the pleading of a cause of action). 

18 

“Claim or Cause of Action,” 13 F.R.D. at 274-275; see 
also R. Millar, Civil Procedure of the Trial Court in 
Historical Perspective 193 (1952) (explaining that re- 
quiring facts consituting a cause of action is inconsistent 
with notice pleading). 

The court of appeals’ requirement that a complaint 
allege all of the facts constituting a prima facie 
case—and in particular identify all the “circumstances 
that give support to an inference of discrimination” 
(Pet. App. 3a)—likewise would resurrect the very con- 
fusion, complication, and prolixity that Rule 8 was 
designed to eliminate. The decision would encourage 
plaintiffs to file complaints “lard[ed] * * * with facts 
and legal theories,” Bennett v. Schmidt, 153 F.3d 516, 
518 (7th Cir. 1998), in order to anticipate and protect 
against dismissal of any potential grounds for relief that 
discovery and the litigation process might uncover. 

Like code-pleading, the court of appeals’ rule also 
would erect a “daunting hurdle” for plaintiffs by re- 
quiring them to amass evidence of a prima facie case 
before discovery. Powell, 189 F.3d at 396. Facts per- 
taining to an employee’s past performance or an em- 
ployer’s actions subsequent to the adverse employment 
action, for example, often will be in the hands of the 
employer. In particular, evidence relevant to the fourth 
McDonnell Douglas factor—that, after the adverse 
employment action, the employer continued to seek 
applicants sharing the plaintiff ’s general qualifications 
—will uniquely be in the defendant’s possession. Sta- 
tistical information relevant to establishing a prima 
facie case of disparate impact also will often be largely 
within the employer’s ken. See ibid. (noting difficulties 
that would arise if plaintiffs were required “at the 
pleading stage, before answers have been filed and 
before discovery, to identify” the specific part of de- 

19 

fendant’s “complex funding formula” that created the 
adverse effect); Gilligan v. Jamco Dev. Corp., 108 F.3d 
246, 250 (9th Cir. 1997) (“without any responsive plead- 
ings or record evidence,” plaintiffs did not have facts 
they needed to allege all the elements of a prima facie 
case). 

10 Employment discrimination plaintiffs, no less 
than other plaintiffs proceeding in federal court, “are 
entitled to discovery before being put to their proof.” 
Bennett, 153 F.3d at 519. 

11 

The court of appeals’ rule, although legally untenable, 
appears motivated by the understandable desire to 
terminate insubstantial litigation at the earliest possi- 
ble stage. This Court has already held, however, that 
generally “federal courts and litigants must rely on 
summary judgment and control of discovery to weed 
out unmeritorious claims sooner rather than later.” 

10 To be sure, the shifting burdens of proof and production 
under the McDonnell Douglas framework, in part, reflect judg- 
ments about which party, after discovery has concluded, may 
reasonably be charged with producing the relevant information at 
the summary judgment or trial stages of litigation. However, that 
framework has never purported to identify which party controls 
evidence bearing on the critical facts at the very outset of the case. 
Indeed, how the McDonnell Douglas framework operates and 
what facts are available to a plaintiff to establish a prima facie case 
could change significantly if discovery reveals that the case in- 
volves a mixed-motive employment action (see Price Waterhouse 

v. Hopkins, 490 U.S. 228 (1989)), or an after-acquired evidence case 
(see McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352 
(1995)). 

11 See also Estelle v. Gamble, 429 U.S. 97, 112-113 n.7 (1976) 
(Stevens, J., dissenting) (“[T]he decision on the merits of the 
complaint should normally be postponed until the facts have been 
ascertained.”); cf. Fed. R. Civ. P. 56(f) (permitting court to grant 
continuance where a party shows that discovery is necessary be- 
fore responding to a summary judgment motion). 

20 

Leatherman, 507 U.S. at 168-169. In addition, the 
Federal Rules allow district courts to order the clarifi- 
cation of pleadings to facilitate the filing of responsive 
pleadings and motions. See Fed. R. Civ. P. 7(a) (author- 
izing a court-ordered reply to an answer), 12(e) (motion 
for a more definite statement). 

12 

C. This Case Does Not Implicate The Special Con- 
siderations Governing Pleadings In Qualified 
Immunity Cases 

This is a case between private parties arising under 
federal statutory law, where the conventional rules of 
federal civil litigation clearly apply. 

13 The case thus 
does not present the question whether some enhanced 
pleading standard or special procedures are appropriate 

12 Even if a complaint suffers from some factual deficiency, the 
proper remedy is usually to allow leave to amend or to grant a 
motion for a more definite statement under Federal Rule of Civil 
Procedure 12(e), rather than to dismiss the case with prejudice. 
See Conley, 355 U.S. at 48 & n.9 (noting that Rule 12(e), among 
others, establishes the procedures for “narrowly” defining “the 
disputed facts and issues”); Roe v. Aware Woman Ctr. for Choice, 
Inc., 253 F.3d 678, 684 (11th Cir. 2001) (dismissal with leave to 
amend); Bennett, 153 F.3d at 518 (the district court should “keep 
the case moving—if the claim is unclear, by requiring a more 
definite statement under Rule 12(e)”); International Controls 
Corp. v. Vesco, 490 F.2d 1334, 1351 (2d Cir.) (“We would be acting 
contrary to the spirit of the Federal Rules if we did not recognize 
the ease with which the complaint may be amended under these 
Rules to supply any additional allegations required to make the 
complaint more informative.”), cert. denied, 417 U.S. 932 (1974). 

13 See Price Waterhouse, 490 U.S. at 253 (“Conventional rules 
of civil litigation generally apply in Title VII cases.”); Baldwin 
County Welcome Ctr. v. Brown, 466 U.S. 147, 150 (1984) (per 
curiam) (finding “no persuasive justification for [the] view that the 
Federal Rules of Civil Procedure were to have a different meaning 
in, or were not to apply to, Title VII litigation”). 

21 

for implied causes of action brought under Bivens v. Six 
Unknown Named Agents of Federal Bureau of Nar- 
cotics, 403 U.S. 388 (1971), against individual govern- 
ment officials who assert a defense of qualified immun- 
ity. Nor does it present questions concerning what 
level of detail must be alleged before a senior govern- 
ment official may be questioned about his or her actions 
in such a case. 

This Court has recognized that qualified immunity 
cases raise special concerns because the “entitlement is 
an immunity from suit rather than a mere defense to 
liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); 
see also Saucier v. Katz, 121 S. Ct. 2151, 2156 (2001). 
There is substantial tension between Rule 8’s command 
of simplified pleading, which generally defers merits 
determinations to the discovery and summary judg- 
ment phases of litigation, and the qualified immunity 
doctrine’s protection against the burdens of discovery 
and trial, which necessitates that “insubstantial law- 
suits * * * be quickly terminated,” Crawford-El v. 
Britton, 523 U.S. 574, 590 (1998). See also Harlow v. 
Fitzgerald, 457 U.S. 800, 819-820 n.35 (1982) (“Insub- 
stantial lawsuits undermine the effectiveness of govern- 
ment as contemplated by our constitutional structure, 
and firm application of the Federal Rules of Civil 
Procedure is fully warranted in such cases.”) (internal 
quotation marks omitted). 

14 

14 This Court has recognized the substantial social costs that 
attend damage actions against individual government officials: 

These social costs include the expenses of litigation, the 

diversion of official energy from pressing public issues, and the 
deterrence of able citizens from acceptance of public office. 
Finally, there is the danger that fear of being sued will dampen 
the ardor of all but the most resolute, or the most irresponsible 
[public officials], in the unflinching discharge of their duties. 

22 

In Leatherman, this Court expressly reserved the 
question “whether our qualified immunity juris- 
prudence would require a heightened pleading in cases 
involving individual government officials.” 507 U.S. at 
167. Furthermore, in Crawford-El, in the course of 
invalidating the application of a heightened evidentiary 
(as opposed to heightened pleading) standard in cases 
alleging unconstitutional motive, the Court instructed 
that trial courts “must exercise [their] discretion in a 
way that protects the substance of the qualified im- 
munity defense * * * so that officials are not sub- 
jected to unnecessary and burdensome discovery or 
trial proceedings.” 523 U.S. at 597-598. The Court 
suggested that, whether by ordering a reply to an 
answer under Federal Rule of Civil Procedure 7(a), or 
granting a motion for more definite statement under 
Federal Rule of Civil Procedure 12(e), trial courts in 
Bivens actions “may insist that the plaintiff ‘put 
forward specific, nonconclusory factual allegations’ that 
establish improper motive * * * in order to survive a 
prediscovery motion for dismissal or summary judg- 
ment.” Crawford-El, 523 U.S. at 598. 

15 

Harlow, 457 U.S. at 814 (internal quotation marks omitted). In 
particular, “broad-ranging discovery and the deposing of numerous 
persons, including an official’s professional colleagues * * * can 
be peculiarly disruptive of effective government” and, if the suit is 
against a high-level government official, “could implicate 
separation-of-powers concerns.” Id. at 817 & n.28. See also Smith 

v. Nixon, 807 F.2d 197, 200 (D.C. Cir. 1986) (Scalia, J., Circuit 
Justice). 

15 See also Siegert v. Gilley, 500 U.S. 226, 236 (1991) (Kennedy, 
J., concurring) (heightened pleading standard is appropriate 
because the “substantive defense of immunity controls” over the 
“usual pleading requirements”); Judge v. City of Lowell, 160 F.3d 
67, 72-75 (1st Cir. 1998) (imposing particularized pleading require- 
ment in qualified immunity cases); Schultea v. Wood, 47 F.3d 1427, 

23 

Accordingly, while the Court should reverse the 
court of appeals’ holding that plaintiffs in employment 
discrimination cases arising under federal statutory law 
must plead the elements of a prima facie case, the Court 
should reserve the question of what supplementary 
standards or procedures properly apply at the pleading 
stage in qualified immunity cases. 

CONCLUSION 

The judgment of the court of appeals should be 
reversed and the case remanded for further proceed- 
ings. 

Respectfully submitted. 

NICHOLAS M. INZEO 

Acting Deputy General 

Counsel 

PHILLIP B. SKLOVER 

Associate General Counsel 

JOHN F. SUHRE 

Attorney 
Equal Employment 

Opportunity Commission 
THEODORE B. OLSON 
Solicitor General 

RALPH F. BOYD, JR. 

Assistant Attorney General 

PAUL D. CLEMENT 

Deputy Solicitor General 

PATRICIA A. MILLETT 

Assistant to the Solicitor 

General 

NOVEMBER 2001 

1433-1434 (5th Cir. 1995) (en banc) (requiring replies, under 
Federal Rule of Civil Procedure 7, to a defendant’s invocation of 
qualified immunity). A similar rule likely would apply to invoca- 
tions of qualified immunity by state officials in actions under 42 
U.S.C. 1983. See Butz v. Economou, 438 U.S. 478, 500 (1978).