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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. 27 F.3d 1112 (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." Id. at 1120.
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. Id. at 1116-17.
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. Id. at 1117. Schultea retained city
employment without a reduction in salary or fringe benefits. The
panel concluded that this negated his liberty interest claim. Id.
at 1117-18.
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." Id. at 1118. Schultea had filed his
complaint himself, and had only later retained counsel. Id. at
1118 n.9.
4

The panel gave guidance for the remand in footnote 2. 27 F.3d
at 1115 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, 113 S. Ct. 1160 (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, 27 F.3d at
1115 n.2 (quoting Leatherman, 113 S. Ct. at 1162). The panel
observed and we agree that nothing in Leatherman disturbed our
holding in Elliott v. Perez, 751 F.2d 1472 (5th Cir. 1985), that
complaints in such cases be pled with "factual detail and
particularity." 751 F.2d at 1473.
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 42 U.S.C. § 1983
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. 751 F.2d at 1477-78 & 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. Id. at 1479. A
concurring opinion doubted judicial authority to impose a pleading
rule. Id. at 1483 (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. Id. 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 id.
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, 981 F.2d 237, 243 (5th
Cir. 1993); Jacquez v. Procunier, 801 F.2d 789, 791 (5th Cir.
1986); Morrison v. City of Baton Rouge, 761 F.2d 242, 244-45 (5th
Cir. 1985); but see O'Quinn v. Manuel, 773 F.2d 605, 608 (5th Cir.
1985).
2 See, e.g., Grady v. El Paso Community College, 979 F.2d
1111, 1114 (5th Cir. 1992); Jackson v. City of Beaumont Police
Dep't, 958 F.2d 616, 621 (5th Cir. 1992); Vinson v. Heckmann, 940
F.2d 114, 116 (5th Cir. 1991); Streetman v. Jordan, 918 F.2d 555,
557 (5th Cir. 1990); Stem v. Ahearn, 908 F.2d 1, 6 (5th Cir. 1990),
cert. denied, 498 U.S. 1069 (1991); Fee v. Herndon, 900 F.2d 804,
807 (5th Cir.), cert. denied, 498 U.S. 908 (1990); Rodriguez v.
Avita, 871 F.2d 552, 554 (5th Cir.), cert. denied, 493 U.S. 854
(1989); Sisk v. Levings, 868 F.2d 159, 161 (5th Cir. 1989); Geter
v. Fortenberry, 849 F.2d 1550, 1553 (5th Cir. 1988); Lewis v.
Woods, 848 F.2d 649, 652 (5th Cir. 1988); Boulos v. Wilson, 834
F.2d 504, 509 (5th Cir. 1987); Martin v. Dallas County, 822 F.2d
553, 556 (5th Cir. 1987); Darlak v. Bobear, 814 F.2d 1055, 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, 457 U.S.
800 (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, 810 F.2d 514, 516
(5th Cir. 1987); Brown v. Texas A & M Univ., 804 F.2d 327, 333 (5th
Cir. 1986; Brinkmann v. Johnston, 793 F.2d 111, 113 (5th Cir.
1986); Hale v. Harney, 786 F.2d 688, 690 (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." 457 U.S. at 818. The Court rejected the subjective, good
faith element of the qualified immunity defense that it had adopted
seven years before in Wood v. Strickland, 420 U.S. 308, 321 (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, 438 U.S. 478
(1978),] that insubstantial claims should not proceed to trial."
Harlow, 457 U.S. at 815-16. 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, 446
U.S. 635 (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, 488 F.2d 1248, 1251 (1st Cir. 1973). All
other circuits considering the issue had placed the burden on the
defendant. See Gomez, 446 U.S. at 638 n.5 (collecting cases). The
Court concluded that "[s]ince qualified immunity is a defense, the
burden of pleading it rests with the defendant." Id. at 640. The
Court held that it saw "no basis for imposing . . . an obligation
9

to anticipate such a defense" in the complaint. Id. 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." Id. 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, 483 U.S. 635 (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." Id. at 640. 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. Id. 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."
Id. 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, 111 S. Ct. 1789
(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." Id. at 1793. 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. Id. 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.
Id. at 1795 (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, 42
F.3d 948 (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, 766 F.2d 179 (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 28 U.S.C.
§ 1915(d). See Watson v. Ault, 525 F.2d 886, 892 (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, 490 U.S. 319, 327 (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, 113 S. Ct. 1160 (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, 943 F.2d 69, 76 (D.C. Cir. 1991); Oladeinde v. City of Birmingham, 963
F.2d 1481, 1485 (11th Cir. 1992), cert. denied, 113 S.Ct 1586 (1993); Sawyer v.
County of Creek, 908 F.2d 663, 667 (10th Cir. 1990); Branch v. Tunnell, 937 F.2d
1382, 1386-87 (9th Cir. 1991); Brown v. Frey, 889 F.2d 159, 170 (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, 493 U.S. 1088 (1990); Elliot V. Thomas, 937 F.2d 338, 344-45 (7th Cir.
1991), cert. denied, 112 S.Ct 973 (1992); Chapman v. City of Detroit, 808 F.2d 459,
465 (6th Cir. 1986); Dunbar Corp. v, Lindsey, 905 F.2d 754, 763 (4th Cir. 1990);
Krohn v. United States, 742 F.2d 24, 31-32 (1st Cir. 1984).
18

liability with immunity from suit." Id. 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." Id.
(emphasis added). Judge Luttig writing for the Fourth Circuit read
the case in this manner. Jordan By Jordan v. Jackson, 15 F.3d 333,
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, 14 F.3d 449, 456-57
(9th Cir.), cert. denied, 114 S.Ct. 2704 (1994) (Branch II);
Kimberlin v. Quinlan, 6 F.3d 789, 794 n.9 (D.C. Cir. 1993), cert.
granted, ____ S. Ct. ____ (1995); Jordan By Jordan v. Jackson, 15
F.3d 333, 339 (4th Cir. 1994).
Instead of relying on inferences from Leatherman, the
majority opinion summons Gomez v. Toledo, 446 U.S. 635 (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, 737 F. 2d 1, 29 (D.C. Cir. 1984).5 Of course,
Judge Higginbotham avoids such anomalies by asserting that Gomez
was suspended until Siegert v. Gilley, 111 S. Ct. 1789 (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." Id. at 1795 (citing Harlow, 457 U.S.
800 (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.
U p o n t h e
assertion of a qualified immunity defense the
plaintiff
must
put
forward
specific,
nonconclusory factual
a l l e g a t i o n s
which establish malice, or face dismissal.
Id. (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, 807 F.2d 197,
200-01 (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. ____, 113 S. Ct. 2742, 2751 (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." 28 U.S.C. § 2072(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, 751 F.2d at 1478. 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-