IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-2186

JOSEPH M. SCHULTEA, SR., Plaintiff-Appellee,

versus

DAVID ROBERT WOOD, ET AL., Defendants,

DAVID ROBERT WOOD, HOMER FORD, W.F. "SLIM" PLAGENS and WARREN K. DRIVER, Defendants-Appellants.

Appeal from the United States District Court for the Southern District of Texas

(March 9, 1995)

Before POLITZ, Chief Judge, WISDOM, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, GARZA, Emilio M., DeMOSS, BENAVIDES, STEWART, and PARKER, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

I.

A former chief of police for Tomball, Texas, alleges that

three city councilmen and the city manager conspired to demote him

after he reported to state authorities that one of the councilmen

might be involved in illegal activity.

As chief of police, Joseph M. Schultea began investigating

allegations in March 1992 that David R. Wood, a councilman, was

involved in criminal activity. On April 8, 1992, Schultea told Warren K. Driver, the city manager of this home rule city, about

his investigation. The next day, Schultea and Driver discussed the

investigation with Mario Del Osso, the city's attorney. The three

decided that Schultea would forward his investigative report to the

Texas Department of Public Safety.

The next day, Wood demanded that Driver add to the upcoming

council agenda possible action against Schultea. Driver, however,

persuaded Wood not to pursue the matter.

With the next report about Wood to the TDPS, events took a

different turn. After consulting with Driver, Schultea sent

additional information about Wood to the TDPS on May 27, 1992.

Later that same day, Schultea learned that Wood and the two other

councilmen, Homer Ford and W.F. "Slim" Plagens, had instructed

Driver to add to the agenda of the June 1, 1992 city council

meeting, discussion of adverse action against Schultea. Schultea

alleges that Driver told him that "he had no option but to place me

on the agenda because Councilmen Wood, Ford and Plagens have all

told him that either I go or he goes." Schultea requested that the

city council consider the agenda item in public, but the city

council made its decision in a closed executive session. The next

day, Driver told Schultea that he had been demoted from police

chief to assistant police chief.

Schultea immediately requested an administrative appeal or

grievance hearing to challenge his demotion and to stop city

councilmen Wood, Ford, and Plagens from making "libelous and

slanderous comments" about him. On June 9, 1992, Driver told

2 Schultea that the city did not have a grievance or administrative

appeal procedure for his case. Schultea nevertheless again asked

the city council for a hearing. Driver responded with a memorandum

that, Schultea alleges, led people to believe that he deserved his

demotion. Driver eventually put Schultea on the June 15, 1992,

city council agenda at which Schultea could again request a hearing

to contest his demotion and to clear his name. The record is not

clear but the city council appears to have tacitly denied his

request for a hearing at the June 15 meeting.

Schultea then filed this suit. He alleges that by demoting

him, the council members deprived him of his property and liberty

interests without due process and violated his First Amendment

rights by retaliating against him for reporting Wood's allegedly

criminal activities to the state. Schultea also claims several

violations of Texas state law.

The councilmen moved to dismiss. The district court denied

the motion, stating simply that "the complaint . . . states a claim

against the defendants." The four individual defendants brought

this interlocutory appeal challenging the denial of their qualified

immunity from suit.

A panel of this court affirmed in part, reversed in part, and

remanded for further proceedings.

(5th Cir. 1994).

It agreed with the district court that Schultea's First Amendment

claim should have survived the motion to dismiss, because "[n]o

reasonable public official in 1992 [i.e., the year the alleged

retaliation occurred] could have assumed that he could retaliate

3 against an employee because the employee disclosed instances of

misconduct by a public official."

.

The panel disagreed with the district court's conclusion that

Schultea's procedural due process claims, at least in their present

form, should go forward. The first of Schultea's two procedural

due process claims alleges a constitutionally protected property

interest in his employment. In Texas, employment is terminable at

will absent a contract to the contrary; Schultea had to allege such

a contract. The panel found that neither the city charter nor the

representations of the official who hired Schultea created such a

contract.

.

Schultea's second procedural due process claim alleges that

his demotion, combined with the city councilmen's stigmatizing

slander, deprived him of his liberty interest. The panel held that

to establish a deprivation of this liberty interest, Schultea had

to show more than demotion.

. Schultea retained city

employment without a reduction in salary or fringe benefits. The

panel concluded that this negated his liberty interest claim.

.

The panel reversed the order denying the motion to dismiss

these due process claims, but remanded to permit Schultea to amend

and restate them. The court noted that the complaint did not state

Schultea's "best case."

. Schultea had filed his

complaint himself, and had only later retained counsel.

at

1118 n.9.

4 The panel gave guidance for the remand in footnote 2.

n.2. In that note, the panel held that this circuit's

pleading standard survives the recent Supreme Court decision in

Leatherman v. Tarrant County Narcotics Intelligence & Coordination

Unit,

(1993). The panel reasoned that the

Leatherman court did not "'consider whether [its] qualified

immunity jurisprudence would require a heightened pleading in cases

involving individual government officials.'" Schultea,

n.2 (quoting Leatherman,

). The panel

observed and we agree that nothing in Leatherman disturbed our

holding in Elliott v. Perez,

(5th Cir. 1985), that

complaints in such cases be pled with "factual detail and

particularity."

.

Our task today is to explain the measure by which to judge the

adequacy of any amended complaint Schultea may file on remand. It

is the occasion for our revisit of Elliott. As we will explain, we

stand by our insistence that complaints plead more than

conclusions, and that a plaintiff can, at the pleading stage, be

required to engage the affirmative defense of qualified immunity

when invoked. However, we will no longer insist that plaintiff

fully anticipate the defense in his complaint at the risk of

dismissal under Rule 12.

It is important to follow the shifts in application of Elliott

as qualified immunity has evolved. Our statement of the measure,

"heightened pleading," has not changed, but in application it has

moved, linked as it is to the substantive principle. This is the

5 age-old dance of procedure and substance, here with the music of

qualified immunity.

We are persuaded that we can balance plaintiffs' rights to

challenge lawless government action against public officials'

rights to be free of the difficulties of the discovery process

without judicial additions to Rule 9(b) and with no change in the

day-to-day procedure in these cases, except one. We will draw to

center stage a judicial tool explicitly preserved by the Civil

Rules, the reply. See Fed. R. Civ. P. 7(a).

II.

In Elliott, we held that in suits filed under

against public officials in their private capacity, a claim must be

stated with particularity. Judge Brown, writing for the panel

majority, forthrightly insisted on this greater detail to

accommodate the substantive right of officials sued for money

damages to be free both of individual liability and the discovery

process -- at least where a defendant's actions, although illegal

at the time of suit, were not certainly so when the complained of

actions were taken.

-78 & n.13. The panel saw

qualified immunity as a substantive right overriding liberal

pleading rules, often termed notice pleading, the conventional but

misleading description of the Civil Rules.

. A

concurring opinion doubted judicial authority to impose a pleading

rule.

(Higginbotham, J., concurring specially). It

urged that insistence on greater pleading detail ought to rest on

6 the reality that what is short and plain is inseparable from the

legal and factual complexity of the case at issue.

It

reasoned that federal trial judges could insist that to state a

claim, short and plain, against a public official, a plaintiff must

at least chart a factual path to the defeat of the defendant's

immunity, free of conclusion. See

The majority in Elliott and the cases that followed treated

pleading questions as a choice between polar opposites -- notice

pleading and pleading with particularity.1 In many if not most

cases, however, our insistence on pleading with particularity

translated to no more than an insistence that the complaint not

plead conclusions. To be sure, we have invoked "heightened

pleading" and "pleading with particularity" as a pleading

requirement in kinship with Rule 9(b) -- but again our

"particularity" seldom bit harder in application than an insistence

that a plaintiff plead more than conclusions.2 Had we simply

1 See, e.g., Colle v. Brazos County,

, 243 (5th Cir. 1993); Jacquez v. Procunier,

(5th Cir. 1986); Morrison v. City of Baton Rouge,

(5th Cir. 1985); but see O'Quinn v. Manuel,

(5th Cir. 1985). 2 See, e.g., Grady v. El Paso Community College,

(5th Cir. 1992); Jackson v. City of Beaumont Police Dep't,

(5th Cir. 1992); Vinson v. Heckmann,

(5th Cir. 1991); Streetman v. Jordan,

(5th Cir. 1990); Stem v. Ahearn,

(5th Cir. 1990), cert. denied,

(1991); Fee v. Herndon,

(5th Cir.), cert. denied,

(1990); Rodriguez v. Avita,

(5th Cir.), cert. denied,

(1989); Sisk v. Levings,

(5th Cir. 1989); Geter v. Fortenberry,

(5th Cir. 1988); Lewis v. Woods,

(5th Cir. 1988); Boulos v. Wilson,

(5th Cir. 1987); Martin v. Dallas County,

(5th Cir. 1987); Darlak v. Bobear,

, 1065

7 insisted that plaintiffs plead more than conclusions in their

complaints, our holdings in these post-Elliott cases would not have

changed.

The pleading hurdle erected was, in actual fact, somewhere

between the poles of this perceived bi-polar set. Significantly,

the requirement of making a short and plain statement demands more

than a statement of conclusions even without the support of Rule

9(b). This is because the Federal Rules of Civil Procedure have,

since their inception in 1938, insisted on more than conclusions,

and in this sense, have never been a system of notice pleading.

Because the Supreme Court has further defined the contours of

qualified immunity since Elliott, we first consider that doctrine.

We must define the demands qualified immunity now makes upon the

Civil Rules and, in particular, the Rules' preference for discovery

over pleading, before we return to pleading standards. We will

then describe the array of procedural tools available to a trial

judge.

III.

Three years before Elliott, in Harlow v. Fitzgerald,

(1982), the Court redefined qualified immunity for government

officials. Justice Powell's opinion for the Court explained that

henceforth, qualified immunity would extend to governmental

(5th Cir. 1987); Palmer v. City of San Antonio,

(5th Cir. 1987); Brown v. Texas A & M Univ.,

(5th Cir. 1986; Brinkmann v. Johnston,

(5th Cir. 1986); Hale v. Harney,

(5th Cir. 1986).

8 officials performing discretionary functions "insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known."

. The Court rejected the subjective, good

faith element of the qualified immunity defense that it had adopted

seven years before in Wood v. Strickland,

(1975).

The Court's deletion of the subjective element of good faith rested

on the pragmatic judgment that it "frequently has proved

incompatible with our admonition in Butz [v. Economou,

(1978),] that insubstantial claims should not proceed to trial."

Harlow,

. The cost of the subjective inquiry

included its attendant increased difficulty in resolving claims

against officials without resort to the discovery process.

Two years before Harlow, the Court had juggled the twin task

of recognizing an immunity from the discovery process and allowing

exploration of its subjective element. See Gomez v. Toledo,

(1980). The circuits had been divided over the placement

of the burden of pleading a defense of good faith. The First

Circuit had required the plaintiff to plead as part of his claim

for relief that the defendant was motivated by bad faith. See,

e.g., Gaffney v. Silk,

(1st Cir. 1973). All

other circuits considering the issue had placed the burden on the

defendant. See Gomez,

n.5 (collecting cases). The

Court concluded that "[s]ince qualified immunity is a defense, the

burden of pleading it rests with the defendant."

. The

Court held that it saw "no basis for imposing . . . an obligation

9 to anticipate such a defense" in the complaint.

The Court

observed that the facts of good faith and the facts underlying

immunity "depend[] on facts peculiarly within the knowledge and

control of the defendant."

It stressed heavily the subjective

element of the immunity defense. It was not completely clear that

Gomez, which rested so heavily upon the qualified immunity

defense's subjective element, survived Harlow's deletion of the

subjective component. This was essentially the law of qualified

immunity when Elliott was decided.

Within two years of Elliott, the Supreme Court returned in

Anderson v. Creighton,

(1987), to the practical

difficulties of qualified immunity, including the difficulty of

determining the availability of the defense without defeating its

vital protection from the burdens of discovery. Justice Scalia's

opinion for the Court turned to the element of "clearly established

law." He explained that objective legal reasonableness would be

empty of meaning if the level of generality with which the law was

described were not particularized to the question of whether it was

clear "that a reasonable official would understand that what he is

doing violates that right."

. Justice Scalia stressed

that the inquiry was fact-specific. The Court "emphasized that

qualified immunity questions should be resolved at the earliest

possible stage of a litigation," but acknowledged that discovery

may be necessary.

at 646 n.6. He conceded that in some cases,

such as in search cases, probable cause and exigent circumstances

will often turn on facts peculiarly within the knowledge of the

10 defendants. And if there are conflicts in the allegations

regarding the actions taken by the police officers, discovery may

be necessary. Even then, the discovery "should be tailored

specifically to the question of [defendants'] qualified immunity."

Implicit in Justice Scalia's analysis is an insistence that a

plaintiff cannot be allowed to rest on general characterizations,

but must speak to the factual particulars of the alleged actions,

at least when those facts are known to the plaintiff and are not

peculiarly within the knowledge of defendants.

The difficulties of qualified immunity in application surfaced

again four years later in Siegert v. Gilley,

(1991). Chief Justice Rehnquist, writing for the Court, explained

that the Court had taken the case "to clarify the analytical

structure under which a claim of qualified immunity should be

addressed."

. Reaffirming Gomez, the Court noted that

qualified immunity is a defense to be pleaded by a defendant

official.3 When a defendant pleads the defense of qualified

immunity, the trial judge should determine both what the current

applicable law is and whether it was clearly established when the

action occurred.

Significantly, the Court instructed that

until this threshold question was answered, no discovery should be

had. The Court did not reach the legitimacy of the court of

appeals's use of a "heightened pleading standard." Justice

Kennedy's concurring opinion did do so, observing that

3 Siegert's reference to Gomez may, and properly so, now have more significance for us than it ultimately will for the Court that made it.

11 [t]he heightened pleading standard is a departure from the usual pleading requirements of Federal Rules of Civil Procedure 8 and 9(b), and departs also from the normal standard for summary judgment under Rule 56. But avoidance of disruptive discovery is one of the very purposes for the official immunity doctrine, and it is no answer to say that the plaintiff has not yet had the opportunity to engage in discovery. The substantive defense of immunity controls.

(Kennedy, J., concurring).

Finally, we return to where we began. In 1993, the Court in

Leatherman concluded that the heightened pleading requirement of

Elliott could not be applied in a § 1983 suit against a

municipality, reserving the question of whether it might survive in

cases against public officials. We need not answer that question

today because henceforth we do not rely upon Rule 9's particularity

requirements for the simple reason that it is unnecessary to do so.

A practical working marriage of pleading and qualified immunity is

achievable without looking to Rule 9. We look instead to Rule 7.

IV.

Qualified immunity's limits upon access to the discovery

process create a new and large role for the Rule 7(a) reply, a

vestige of pre-1938 common law and code pleading expressly

preserved in the Civil Rules. At the heart of the 1938 transition

to the Civil Rules was the over-arching policy judgment that

pleadings would henceforth play a far less important role in the

winnowing process. This reduced role for pleadings in general came

with the implicit direction to use the discovery processes to put

flesh on claims and defenses.

12 In the 1938 transition, the reply was preserved but put on the

shelf, seldom to be used. Both common law and code pleading

required a response to any new matter in an initial responsive

pleading at the pain of admitting the assertion. Under Rule 7(a),

it is not necessary to reply to such new matter, and under Rule

8(d), allegations in a pleading for which no response is required

are deemed denied. See 5 Charles A. Wright & Arthur R. Miller,

Federal Practice and Procedure § 1186, at 24 (citing Charles E.

Clark, Handbook of the Law of Code Pleading § 108 (2nd ed. 1947)).

Thus the Civil Rules anticipate a reduced, but not eradicated,

role for the Rule 7 reply. Professors Wright and Miller observe

that "[i]n certain instances, an additional pleading by the

plaintiff may be helpful to the defendant in laying the groundwork

for a motion to test the sufficiency of the claim." 5 Charles A.

Wright & Arthur R. Miller, Federal Practice and Procedure § 1185,

at 23. We believe that ordering a reply to the affirmative defense

of qualified immunity is one of those certain instances.

When a public official pleads the affirmative defense of

qualified immunity in his answer, the district court may, on the

official's motion or on its own, require the plaintiff to reply to

that defense in detail. By definition, the reply must be tailored

to the assertion of qualified immunity and fairly engage its

allegations. A defendant has an incentive to plead his defense

with some particularity because it has the practical effect of

requiring particularity in the reply.

13 The Federal Rules of Civil Procedure permit the use of Rule 7

in this manner. The only Civil Rule that governs the content of

Rule 7 replies is Rule 8(e)(1), which demands that "[e]ach averment

of a pleading shall be simple, concise, and direct."

We do not read Rule 8(e)(1) as a relevant limitation upon the

content of a Rule 7 reply. Indeed, a party pleading fraud or

mistake with particularity under Rule 9(b) is also required to do

so in a simple, concise and direct manner. Nor is Rule 8(a)(2)'s

"short and plain" standard a limitation on the content of a Rule 7

reply. Rule 8 applies only to the subset of pleadings that "set[]

forth a claim for relief, whether an original claim, counterclaim,

cross-claim, or third-party claim." Rule 8(a) does not encompass

pleadings that it does not list, including Rule 7 replies.

Employing the maxim that the Supreme Court used in Leatherman --

expressio unius est exclusio alterius -- we hold that because Rule

8(a) does not list Rule 7 replies, Rule 8(a)'s "short and plain"

standard does not govern Rule 7 replies.

There is a powerful argument that the substantive right of

qualified immunity supplants the Federal Rules's scheme of pleading

by short and plain statement. Yet, the issue is complex and

difficult. The contention that a federal procedural rule conflicts

with a substantive right is problematic. "[A]ll federal rules of

court enjoy presumptive validity. Indeed, to date the Supreme

Court 'has never squarely held a provision of the civil rules to be

invalid on its face or as applied.'" Exxon Corp. v. Burglin,

(5th Cir. 1995) (citation omitted) (quoting Paul M. Bator

14 et al., Hart & Wechsler's The Federal Courts and the Federal

System 769 (3d ed. 1988)). In any event, finding a civil rule

inapplicable does not solve the problem. We would have to supply

a new rule in its place. Nor will it do to insist that avoiding

qualified immunity is an element of a claim. As Siegert made

plain, Gomez is alive and well.

V.

Our answer to Leatherman is that the district court has an

array of procedures that will carry the load as far as pleadings

can. First, the district court must insist that a plaintiff suing

a public official under § 1983 file a short and plain statement of

his complaint, a statement that rests on more than conclusions

alone. Second, the court may, in its discretion, insist that a

plaintiff file a reply tailored to an answer pleading the defense

of qualified immunity. Vindicating the immunity doctrine will

ordinarily require such a reply, and a district court's discretion

not to do so is narrow indeed when greater detail might assist.

The district court may ban discovery at this threshold pleading

stage and may limit any necessary discovery to the defense of

qualified immunity. The district court need not allow any

discovery unless it finds that plaintiff has supported his claim

with sufficient precision and factual specificity to raise a

genuine issue as to the illegality of defendant's conduct at the

time of the alleged acts. Even if such limited discovery is

allowed, at its end, the court can again determine whether the case

15 can proceed and consider any motions for summary judgment under

Rule 56.

None of this draws upon the authority of Rule 9(b). The

ultimate outcome of a confrontation between Rule 9(b) and qualified

immunity, we no longer need to decide and we do not. We do not

abandon the insistence in Elliott v. Perez that a complaint must do

more than allege conclusions. Rather, we embrace it, retaining the

practical core of the writing of both Judge Brown and the

concurring opinion.

Our answer to the question of whether Elliott survived

Leatherman is this: Since our first efforts in Elliott nine years

ago, the law of qualified immunity has developed, and our

perception of its practical demands upon the Civil Rules has moved

in tandem. The confrontation we saw in 1984 is not the

confrontation today, and we can insist upon all the particularity

of practical use, with no draw upon Rule 9(b).

Finally, we do not today change the procedures developed under

Spears v. McCotter,

(5th Cir. 1985). The power of the

district court to satisfy itself that an action filed in forma

pauperis is not frivolous or malicious is granted by

(d). See Watson v. Ault,

(5th Cir. 1976).

A district court need not await any responsive pleading to conduct

its inquiry. As Justice Marshall put it: "[T]he statute

[§ 1915(d)] accords judges not only the authority to dismiss a

claim based on an indisputably meritless legal theory, but also the

unusual power to pierce the veil of the complaint's factual

16 allegations and dismiss those claims whose factual contentions are

clearly baseless. Examples of the former class are claims against

which it is clear that the defendants are immune from suit. . . ."

Neitzke v. Williams,

(1989).

We affirm the district court's denial of the motion to dismiss

Schultea's first amendment claim, but reverse its denial of the

motion to dismiss Schultea's claims of denied procedural due

process. These claims are remanded to allow plaintiff to amend and

for further proceedings consistent with this opinion.

AFFIRMED IN PART AND REVERSED IN PART.

EDITH H. JONES, Circuit Judge, with whom, JOLLY and BARKSDALE,

Circuit Judges, join, specially concurring:

Our court considered this case en banc purportedly to

answer whether Leatherman v. Tarrant County Narcotics Intelligence

& Coordination,

(1993), demanded we jettison the

"heightened pleading" standard in qualified immunity cases. While

I do not disagree with Judge Higginbotham's novel and interesting

use of Rule 7 to address the qualified immunity defense, I do not

believe Leatherman compels our court to abandon its consistent

approach over the last decade. I write briefly in defense of the

continued vitality of Elliott v. Perez, and of its uniform adoption

among the courts of appeals.4

4 The other courts of appeals have uniformly embraced a heightened pleading standard in qualified immunity cases. See, e.g. Hunter v. District of Columbia,

(D.C. Cir. 1991); Oladeinde v. City of Birmingham,

(11th Cir. 1992), cert. denied,

(1993); Sawyer v. County of Creek,

(10th Cir. 1990); Branch v. Tunnell,

(9th Cir. 1991); Brown v. Frey,

(8th Cir. 1989),

17 Notably, Judge Higginbotham's opinion for this en banc

court does not assert that Leatherman demands a retreat from

Elliott. Nor could it. Despite a superficial relevance,

Leatherman cannot faithfully be read to preclude - or even indict -

the application of a heightened pleading requirement in actions

against individual government officials. First, the Chief Justice

writing for a unanimous Court explicitly distinguished "heightened

pleading" in § 1983 actions against "municipalities" from "state

or local officials sued in their individual capacity." Id. at

1162. ("We thus have no occasion to consider whether our qualified

immunity jurisprudence would require a heightened pleading in cases

involving individual government officials.")

Moreover, the Chief Justice's mode of analysis confirms

that the Supreme Court did not cast doubt on the propriety of

Elliot v. Perez as applied to claims against government officials.

The respondent in Leatherman attempted to salvage the Fifth

Circuit's heightened pleading requirement in municipal liability

cases by forging a bond between suits against municipalities and

those against government officers. Specifically, respondent

asserted "municipalities are no different from state or local

officials sued in their individual capacity." Id. Notably, the

Chief Justice declined to dismiss the kinship as immaterial, but

instead answered, "This argument wrongly equates freedom from

cert. denied,

(1990); Elliot V. Thomas,

(7th Cir. 1991), cert. denied,

(1992); Chapman v. City of Detroit,

(6th Cir. 1986); Dunbar Corp. v, Lindsey,

(4th Cir. 1990); Krohn v. United States,

(1st Cir. 1984).

18 liability with immunity from suit."

Such a response (and

extensive discussion of the difference) would have been completely

unnecessary if the Chief Justice's Rule 9 text-based argument were

applicable to claims against individual government officers.

Furthermore, the opinion in Leatherman more naturally

implies that the Supreme Court might require the imposition of a

heightened pleading standard in these cases - let alone permit one

to be applied: "We thus have no occasion to consider whether our

qualified immunity jurisprudence would require a heightened

pleading in cases involving individual government officials."

(emphasis added). Judge Luttig writing for the Fourth Circuit read

the case in this manner. Jordan By Jordan v. Jackson,

,

339 n.5 (4th Cir. 1994). In fact, no circuit has concluded that

Leatherman undermines the vitality of heightened pleading in

qualified immunity cases. Branch v. Tunnell,

(9th Cir.), cert. denied,

(1994) (Branch II);

Kimberlin v. Quinlan,

, 794 n.9 (D.C. Cir. 1993), cert.

granted, ____ S. Ct. ____ (1995); Jordan By Jordan v. Jackson,

(4th Cir. 1994).

Instead of relying on inferences from Leatherman, the

majority opinion summons Gomez v. Toledo,

(1980),

(from the grave?) to jettison heightened pleading. As an initial

matter, it seems unlikely that the panel in Elliott v. Perez, which

adopted heightened pleading in 1985, was superseded by the decision

of the Supreme Court in 1980. Judge Higginbotham did not cite

Gomez in his special concurrence to Elliott. Further, Justice

19 Scalia, Judges Ken Starr and Harry Edwards concluded in 1984 that

Harlow required heightened pleading in the plaintiff's complaint.

Hobson v. Wilson,

(D.C. Cir. 1984).5 Of course,

Judge Higginbotham avoids such anomalies by asserting that Gomez

was suspended until Siegert v. Gilley,

(1991).

Such a resurrection is at least inconsistent with Justice

Kennedy's concurrence in Siegert, in which he not only accepted the

more demanding standard but welcomed it: "The heightened pleading

standard is a necessary and appropriate accommodation . . . in

qualified immunity analysis."

at 1795 (citing Harlow,

(1982)). He left no room for doubt:

The heightened pleading standard is a departure from the usual pleading requirements of Fed. R. Civil Proc. 8 and 9(b), and departs also from the normal standard for summary judgment under Rule 56. But avoidance of disruptive discovery is one of the very purposes for the official immunity doctrine, and it is no answer to say that the plaintiff has not yet had the opportunity to engage in discovery. The substantive defense of immunity controls.

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

(Kennedy, J.,concurring). The majority of the Court intimated

no disagreement with Justice Kennedy but dismissed the case on the

ground that there was no substantive constitutional violation. Id.

at 1791. The three justices in dissent, while disagreeing as to

5 Justice Scalia wrote in 1985 of the propriety of application of heightened pleading to the plaintiff's complaint. Smith v. Nixon,

(D.C.Cir. 1986).

20 the merits of the constitutional issue, nonetheless also recognized

the necessity for some form of heightened pleading in qualified

immunity cases. Id. 1797-1801 (Marshall, J. dissenting).

Accordingly, four justices endorsed a heightened standard in

qualified immunity and none disagreed. Finally, the holding of

Siegert is in no way inconsistent with a heightened pleading

requirement, the issue on which certiorari was granted. The Court

simply took a different path to resolving Siegert's case on the

pleadings.

Perhaps Judge Higginbotham does not wholly subscribe to

the revival of Gomez à la Siegert either, for he concedes that

"Siegert's reference to Gomez may, and properly so, now have more

significance for us than it ultimately will for the Court that made

it." My view is somewhat different. I do not think the dicta of

Gomez/Siegert requiring a defendant to plead qualified immunity is

inconsistent with heightened pleading. And to the extent Judge

Higginbotham's implication from Gomez/Siegert is based on dicta

rather than a holding of the Court, I am not convinced of our duty

to follow dicta slavishly. As Justice Scalia commented, the Court

"think it generally undesirable, where holdings of the Court are

not at issue, to dissect the sentences of the United States Reports

at though they were the United States Code." St. Mary's Honor

Center v. Hicks, ____ U.S. ____,

(1993).

This substantive immunity afforded public officials to

free them from the burdens of litigation cannot be abrogated by a

rule of civil procedure. Under the Rules Enabling Act, the Federal

21 Rules of Civil Procedure "shall not abridge, enlarge or modify any

substantive right."

(b). Absent a demand for

specific, non-conclusory allegations that would defeat immunity, a

government official would routinely sacrifice some of his

substantive right to avoid the distraction of "the oft-time

overwhelming preliminaries of modern litigation." Elliott v.

Perez,

. To the extent of any conflict, Rules 8

and 9(b) must yield to vindication of the defense of immunity.

To say this is not, however, to conclude that § 1983

plaintiffs are hopeless in the face of the heightened pleading

requirement. Our court recently reiterated that the apparent

harshness of the rule is "tempered by this circuit's directives to

allow a plaintiff initially failing to state a claim the

opportunity to amend or supplement the pleadings freely, so that he

may state his best case." (footnoted citation omitted). Wicks v.

Miss. State Employment Svces, ____ F.3d ____ (5th Cir. 1995)

(Politz, C.J.).

As a next-best alternative, Judge Higginbotham's approach

appears to have merit, although we can only guess how it will

operate in practice. For the sake of continuity and stability,

however, I would not be inclined to abandon heightened pleading

until we must, and only at that juncture would I welcome the Rule

7 procedure.

EMILIO M. GARZA, Circuit Judge, specially concurring:

-22- Although I concur in the judgment of the court, I do so

because I agree with Judge Jones that Elliott's heightened pleading

standard survives Leatherman. I write separately to express two

concerns regarding the majority's reliance on the Rule 7(a) reply.

Until now, we have required that § 1983 plaintiffs meet the

qualified immunity defense with allegations in their complaints,

allegations that were required, at a minimum, to be more than mere

conclusions. Now, however, "we will no longer insist that a

plaintiff fully anticipate the defense in his complaint at the risk

of dismissal under Rule 12." Instead, a plaintiff will be able to

wait to see whether the defendant will raise the qualified immunity

defense in his answer, and the plaintiff will be required to meet

the defense only if the district court orders him to file a reply.

If the district court does order a reply,6 the plaintiff can meet

the qualified immunity defense in the reply, a pleading to which

even the majority's "more than conclusions" pleading requirement

does not apply.7

Because the standards that once governed a plaintiff's

allegations regarding qualified immunity will not apply to a

6 The consequences of the district court's not ordering a reply are unclear. Presumably, a court could not then dismiss the complaint for failure to meet the qualified immunity defense because we no longer require that the plaintiff fully anticipate the qualified immunity defense in his complaint. 7 The majority does not hold, nor could it, that the "more than conclusions" pleading standard will apply to a plaintiff's Rule 7(a) reply. It grounds the "more than conclusions" standard in Rule 8(a)(2)'s requirement that pleadings contain a "short and plain statement" of the asserted claim, but as the majority accurately notes, Rule 8(a)(2)'s "short and plain statement" requirement would not apply to a Rule 7(a) reply. The only rule that governs the content of a Rule 7 reply is Rule 8(e)(1), which requires that "[e]ach averment of a pleading shall be simple, concise, and direct." However, the majority does not "read Rule 8(e)(1) as a relevant limitation upon the content of a Rule 7 reply." plaintiff's reply, the majority must decide what rules, if any,

govern the content of such a reply. The court does not answer this

question with an independent legal requirement against which

district courts can measure a plaintiff's allegations. Instead,

the court explains that the district court may:

require a plaintiff to reply to [the qualified immunity] defense in detail.[8] By definition, the reply must be tailored to the assertion of qualified immunity and fairly engage its allegations. A defendant has an incentive to plead his defense with some particularity because it has the practical effect of requiring particularity in the reply.

Slip op. at 13 (emphasis added). Any minimum requirement on the

content of the reply will depend on (1) the district court's

discretionary decision to require detailed averments in the reply;

and (2) the practical effect of the particularity of the

defendant's answer. The majority has thus abandoned an independent

pleading requirement for a system that depends on the district

court's discretion and the litigants' incentives.

The majority's limitation on the district court's discretion

to order a reply is also troubling. To the extent the majority

limits a district court's discretion to order a reply, its opinion

is inconsistent with the plain language of Rule 7(a), which simply

states that "the court may order a reply." On one hand, the

opinion states that the "court may, in its discretion, insist that

8 The Federal Rules of Civil Procedure do not empower the district court to require that a reply be "detailed." Whether "detailed" has independent legal significance or whether the detail required will depend on how district courts formulate their orders requiring a reply is unclear.

-24- a plaintiff file a reply . . . ." (emphasis added). On the other

hand, it states: "Vindicating the immunity doctrine will

ordinarily require such a reply, and a district court's discretion

to do so is narrow indeed when greater detail might assist." Such

a limitation on the district court's discretion is not contained in

Rule 7(a), and in my view the majority has not explained why the

application of Rule 7(a) to qualified immunity cases requires

reading such a limitation into the rule.9

The majority's Rule 7 approach, however novel and interesting,

raises more questions than it answers. Regardless of these

concerns, however, I would hold that Elliott's heightened pleading

standard survives Leatherman for the reasons stated by Judge Jones

in her concurring opinion.

9 The district court's discretion, or lack thereof, also raises the question of how this court, down the road, will review the district court's decision not to order a reply. Rule 7(a) and the court's "may, in its discretion" language suggest an abuse of discretion standard. In contrast, the "if greater detail might assist" limitation seems to involve a question of law, reviewable de novo. How these two aspects combine is unclear. It is also unclear what standard a district court will use to determine when "greater detail might assist."

-25-