S.A.A. v. Samantha Geisler

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 23-3119

___________________________

S.A.A.

Plaintiff - Appellant

v.

Samantha Geisler, Maple Grove Police Officer

Defendant - Appellee

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The American Civil Liberties Union Foundation; Professors of Civil Procedure

Amici on Behalf of Appellant(s)

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Appeal from United States District Court

for the District of Minnesota

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Submitted: October 24, 2024

Filed: February 7, 2025

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Before COLLOTON, Chief Judge, LOKEN, SMITH, GRUENDER, BENTON,

SHEPHERD, KELLY, ERICKSON, GRASZ, STRAS, and KOBES, Circuit Judges,

En Banc.

____________

GRUENDER, Circuit Judge.

This appeal arises out of 42 U.S.C. § 1983 claims brought by plaintiff S.A.A.,

alleging that Maple Grove, Minnesota police officer Samantha Geisler violated the

Fourth Amendment while conducting an arrest. The complaint, either as filed or as

amended, did not specify whether S.A.A. was suing Geisler in Geisler’s individual

or official capacity. Geisler moved for summary judgment on the basis that, under

our circuit’s “clear statement rule” for § 1983 complaints, S.A.A. failed to plead

individual capacity claims. See Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619

(8th Cir. 1995). The district court granted the motion for summary judgment. S.A.A.

v. Geisler, No. 21-CV-2071 (PJS/DJF), 2023 WL 5533344 (D. Minn. Aug. 28,

2023). On appeal, a panel of this court affirmed. S.A.A. v. Geisler, 108 F.4th 699

(8th Cir. 2024); reh’g en banc granted, opinion vacated, No. 23-3119, 2024 WL

4128448 (8th Cir. Sept. 10, 2024). S.A.A. petitioned for rehearing en banc, asking

us to reconsider Egerdahl and its progeny. Sitting en banc, we discard our clear

statement rule and adopt the “course of proceedings test” for determining whether a

§ 1983 defendant is sued in her individual or official capacity. Accordingly, we

reverse the district court’s grant of summary judgment and remand for further

proceedings.

I. Background

On January 7, 2020, Geisler and several fellow officers executed a search

warrant at S.A.A.’s home to search for stolen goods. A plain-clothed officer

knocked on the door and S.A.A.’s husband, not knowing who was at the door or

why, fired gunshots. No one was injured, but the police ordered all the occupants of

the house to exit with their hands up and to get on the ground. S.A.A. alleged that,

after she exited the house, Geisler threw her onto the ground and punched her in the

back.

On September 20, 2021, S.A.A. brought § 1983 claims against Geisler,

alleging false arrest and excessive force in violation of the Fourth Amendment. The

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complaint, either as filed or as amended, did not specify the capacity in which

Geisler was sued. On March 27, 2023, Geisler moved for summary judgment,

arguing that under our clear statement rule S.A.A. did not sue her in her individual

capacity. See Egerdahl, 72 F.3d at 619 (“If a plaintiff’s complaint is silent about the

capacity in which she is suing the defendant, we interpret the complaint as including

only official-capacity claims.”). S.A.A. conceded that she had no official capacity

claims against Geisler. The district court therefore granted Geisler’s motion for

summary judgment.

A panel of this court affirmed pursuant to the clear statement rule, which it

noted has long been a precedent in this circuit and was therefore binding on the

panel. S.A.A., 108 F.4th at 701; see also United States v. Ellingburg, 113 F.4th 839,

842 (8th Cir. 2024) (specifying that “only the en banc court may overturn” our

circuit’s precedents). S.A.A. petitioned for rehearing en banc so that we may

reconsider our approach to determining the capacity in which a § 1983 defendant is

sued when the complaint does not specify. Specifically, S.A.A. urges us to reject

the clear statement rule in favor of the course of proceedings test used in all the other

circuits. S.A.A. contends that, under the course of proceedings test, her claims

should be construed as against Geisler in her individual capacity, so the grant of

summary judgment should be reversed. 1

II. Discussion

Decades ago, we wrote that “section 1983 litigants wishing to sue government

agents in both [individual and official] capacities should simply use the following

language: ‘Plaintiff sues each and all defendants in both their individual and official

1

S.A.A. also moved to amend her complaint to specify her individual capacity

claims against Geisler. The district court denied her motion. S.A.A., 2023 WL

5533344 at *3-*6. S.A.A. challenged this in her initial appeal and the panel

affirmed. S.A.A., 108 F.4th at 701. S.A.A.’s petition for rehearing en banc does not

address the motion to amend. And her counsel conceded during oral argument that

the only issue on this en banc appeal is the capacity question. Accordingly, we do

not consider the motion to amend here.

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capacities.’” Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989) (quoting Rollins by

Agosta v. Farmer, 731 F.2d 533, 536 n.3 (8th Cir. 1984)). This instruction later

transformed into a bright-line rule that “[i]f a plaintiff’s complaint is silent about the

capacity in which she is suing the defendant, we interpret the complaint as including

only official-capacity claims.” Egerdahl, 72 F.3d at 619. We have adhered to this

“clear statement rule” ever since Egerdahl. See, e.g., Murphy v. Arkansas, 127 F.3d

750, 754 (8th Cir.1997); Andrus ex rel. Andrus v. Arkansas, 197 F.3d 953, 955 (8th

Cir.1999); Baker v. Chisom, 501 F.3d 920, 923 (8th Cir. 2007); Sanders v. Newton,

117 F.4th 1059, 1064-65 (8th Cir. 2024).

S.A.A. asks us to overturn the clear statement rule. Overturning our circuit’s

precedent is appropriate when the precedent is “erroneous” and “perpetuate[s]

unwarranted disuniformity in the law.” United States v. $579,475.00 in U.S.

Currency, 917 F.3d 1047, 1050 (8th Cir. 2019) (en banc). The clear statement rule

conflicts with the Federal Rules of Civil Procedure, is in tension with Supreme Court

decisions, and unwarrantedly sets us alone among the courts of appeals. For each of

these reasons, we now reject the clear statement rule.

First, the clear statement rule conflicts with federal pleading rules. “Except

when required to show that the court has jurisdiction, a pleading need not allege . . . a

party’s capacity to sue or be sued.” Fed. R. Civ. P. 9(a)(1)(A). In Nix, we interpreted

Rule 9 to require a capacity stipulation in a § 1983 complaint because “[t]he

Eleventh Amendment presents a jurisdictional limit on federal courts in civil rights

cases against states and their employees.” Nix, 879 F.2d at 431 (emphasis added).2

2

The text of Rule 9 differed slightly when we decided Nix, but the substance

has not changed. See Nix, 879 F.2d at 431 (“It is not necessary to aver the capacity

of the party to sue or to be sued . . . except to the extent required to show the

jurisdiction of the court.”) (emphasis removed) (quoting Fed. R. Civ. P. 9(a)

(amended 1987)). See also Fed. R. Civ. P. 9 advisory committee’s notes to 2007

amendment (“The language of Rule 9 has been amended as part of the general

restyling of the Civil Rules to make them more easily understood and to make style

and terminology consistent throughout the rules. These changes are intended to be

stylistic only.”).

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However, our logic in Nix was “faulty in its premise,” Baker, 501 F.3d at 926

(Gruender, J., concurring in part and dissenting in part), because it “neglect[ed] the

considerable differences between Eleventh Amendment immunity and federal

jurisdiction.” Biggs v. Meadows, 66 F.3d 56, 60 (4th Cir. 1995). Immunity and

jurisdiction are distinct concepts. Unlike immunity, subject matter jurisdiction must

be evaluated by federal courts independent of the litigants’ contentions, cannot be

waived by a party, and cannot be abrogated by Congress. See id. Because a § 1983

defendant’s capacity to be sued relates to immunity, which is expressly distinct from

jurisdiction, a § 1983 plaintiff “need not allege . . . a party’s capacity to sue or be

sued” under the federal rules. Fed. R. Civ. P. 9(a)(1)(A). Because the clear

statement rule requires an express allegation of the defendant’s capacity for reasons

other than to establish federal court jurisdiction, it erroneously extends, and

explicitly conflicts with, Rule 9.3

Our clear statement rule also “seems to be swimming against recent currents

from the Supreme Court regarding notice pleading.” Baker, 501 F.3d at 927

(Gruender, J., concurring in part and dissenting in part). The Court has instructed

that “[i]n many cases, the [§ 1983] complaint will not clearly specify whether

officials are sued personally, in their official capacity, or both. The course of

proceedings in such cases typically will indicate the nature of the liability sought to

be imposed.” Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (internal

quotation marks omitted). This direction to look broadly to the “course of

proceedings” to determine the capacity in which officials are sued is difficult to

square with our requirement of a clear statement.

3

The dissent maintains that federal pleading rules support the clear statement

rule, contending that it is “properly rooted in Rule 8(a)(2),” which requires that a

complaint include “a short and plain statement of the claim showing that the pleader

is entitled to relief.” See post, at 10 (quoting Fed. R. Civ. P. 8(a)(2)). This misses

the point. While Rule 8(a)(2) provides a general rule for all pleadings, Rule 9

specifically directs that plaintiffs “need not allege . . . a party’s capacity to sue or be

sued” absent circumstances not applicable here. Fed. R. Civ. P. 9(a)(1)(A). Thus,

the pertinent federal pleading rule is Rule 9, not Rule 8.

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More recently, the Court rejected a similar clear statement rule out of the Fifth

Circuit, which required plaintiffs seeking damages for constitutional violations to

expressly invoke § 1983. See Johnson v. City of Shelby, Miss., 574 U.S. 10, 11

(2014) (per curiam) (“Federal pleading rules call for ‘a short and plain statement of

the claim showing that the pleader is entitled to relief,’ . . . they do not countenance

dismissal of a complaint for imperfect statement of the legal theory supporting the

claim asserted.”) (quoting Fed. R. Civ. P. 8(a)(2)). “[A] basic objective of the

[Federal Rules of Civil Procedure] is to avoid civil cases turning on technicalities.”

Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1215, p. 172

(3d ed. 2004)). The same logic applies here. The clear statement rule “places the

plaintiff in the chokehold of restrictive, overly technical pleading requirements.”

Hill v. Shelander, 924 F.2d 1370, 1373 (7th Cir. 1991). Just as the Fifth Circuit’s

“heightened pleading rule” requiring a clear statement of the statutory basis for a

plaintiff’s cause of action was an additional technicality beyond the requirements of

Rule 8, Johnson, 574 U.S. at 11, our circuit’s requirement of clear statement of the

defendant’s capacity to be sued is an additional technicality beyond the requirements

of Rule 9.4

Lastly, our adherence to the rule puts us in a “lonely position” compared to

the approach of other courts. Baker, 501 F.3d at 924 n.2. Indeed, each of the other

circuits, following the Supreme Court’s language in Graham, has adopted a “course

of proceedings test” to evaluate whether a § 1983 defendant is sued in an individual

4

The dissent disputes that Supreme Court precedent supports the course of

proceedings test, pointing to Hafer v. Melo, 502 U.S. 21 (1991), where the Court

identified the circuit split between the clear statement rule and course of proceedings

test but declined to settle the split because the “issue [was] not properly before”

them. Id. at 24 n.*. The dissent interprets this as an implied endorsement of the

clear statement rule. See post, at 13. In so doing, the dissent overreads Hafer and

disregards the subsequent developments by the Court in the decades since Hafer,

developments which are exceedingly difficult to square with the clear statement rule.

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or official capacity where the complaint is not explicit.5 Graham, 473 U.S. at 167

n.14. Keeping the clear statement rule in place would leave this circuit on an island

with an “erroneous precedent in place” and “perpetuate unwarranted disuniformity

in the law.” $579,475.00, 917 F.3d at 1050.

Faithfully applying Supreme Court precedent and the Federal Rules of Civil

Procedure, we join our sister circuits in rejecting the clear statement rule in favor of

the course of proceedings test for determining the capacity in which a § 1983

defendant is sued.6

5

See, e.g., Powell v. Alexander, 391 F.3d 1 (1st Cir. 2004); Rodriguez v.

Phillips, 66 F.3d 470 (2d Cir. 1995); Downey v. Pennsylvania Dep’t of Corr., 968

F.3d 299 (3d Cir. 2020); Biggs v. Meadows, 66 F.3d 56 (4th Cir. 1995); Robinson v.

Hunt Cnty., 921 F.3d 440 (5th Cir. 2019); New Albany Main St. Properties v. Watco

Companies, LLC, 75 F.4th 615 (6th Cir. 2023); Tom Beu Xiong v. Fischer, 787 F.3d

389 (7th Cir. 2015); Stoner v. Santa Clara Cnty. Off. of Educ., 502 F.3d 1116 (9th

Cir. 2007); Trackwell v. U.S. Gov’t, 472 F.3d 1242 (10th Cir. 2007); Young

Apartments, Inc. v. Town of Jupiter, FL, 529 F.3d 1027 (11th Cir. 2008); Daskalea

v. D.C., 227 F.3d 433 (D.C. Cir. 2000); Pennington Seed, Inc. v. Produce Exch. No.

299, 457 F.3d 1334 (Fed. Cir. 2006).

6

The dissent objects to our adoption of the course of proceedings test,

contending that “public servants are now required to throw out a smattering of

defenses in their answer” to account for the unclear capacity in which they are sued,

or otherwise “risk waiving a meritorious defense.” Post, at 12 (emphasis in original).

This concern is overstated. While “failure to plead an affirmative defense results in

its forfeiture and exclusion from the case,” Crutcher v. MultiPlan, Inc., 22 F.4th 756,

765 (8th Cir. 2022) (citing Fed. R. Civ. P. 8(c)), “[a]s long as an affirmative defense

is raised in the trial court in a manner that does not result in unfair surprise, technical

failure to comply with Rule 8(c) is not fatal.” Id. at 766 (internal citations and

quotation marks omitted). Further, as the dissent itself notes, Rule 15(a)(2) permits

district courts to give leave to parties to amend their pleadings when justice so

requires. See post, at 12 n.10. (citing Fed. R. Civ. P. 15(a)(2)). Existing law already

protects § 1983 defendants in the absence of a clear statement rule.

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Geisler argues that even if we adopt the course of proceedings test, we should

not apply it retroactively to this case, despite “the normal rule in civil cases . . . [of]

full retroactivity.” See Holbein v. TAW Enterprises, Inc., 983 F.3d 1049, 1061 (8th

Cir. 2020) (en banc). Geisler points to Chevron Oil Co. v. Huson, 404 U.S. 97, 106-

07 (1971), where the Supreme Court recognized the possibility of prospective-only

application of holdings in certain limited circumstances.7 However, the Court has

since pared back Chevron Oil and reaffirmed that a court’s holding applies “to the

parties before it” and “must be given full retroactive effect in all cases still open on

direct review.” Harper v. Virginia Dep’t of Tax’n, 509 U.S. 86, 97 (1993). We have

long treated Harper as having “largely superseded Chevron Oil” on the question of

retroactive application of our holdings. See Fogie v. THORN Americas, Inc., 190

F.3d 889, 902 n.7 (8th Cir. 1999). Therefore, the course of proceedings test applies

“to the parties before [us]” with “full retroactive effect.” Harper, 509 U.S. at 97.

Accordingly, the district court on remand should determine whether the

course of proceedings indicates S.A.A.’s intent to sue Geisler in her individual

capacity. See Graham, 473 U.S. at 167 n.14. Our sister circuits can offer helpful

guidance. The fundamental question is whether the course of proceedings has put

the defendant “on notice that she was being sued in her individual capacity” and that

“her personal liability was at stake.” Daskalea, 227 F.3d at 448. “Throughout, the

underlying inquiry remains whether the plaintiff’s intention to hold a defendant

personally liable can be ascertained fairly.” Biggs, 66 F.3d at 61.

7

The Court laid out three requirements to apply a holding prospectively only:

(1) the holding represents a new principle of law; (2) nonretroactive application

would not hinder the new principle’s application going forward; and (3)

nonretroactive application is necessary to avoid inequitable results. See Chevron

Oil, 404 U.S. at 106-07. We do not discern any inequitable results from applying

the course of proceedings test retroactively here. Therefore, even if Chevron Oil

governed, we should apply the course of proceedings test to this case. See Ryder v.

United States, 515 U.S. 177, 184-85 (1995) (“[W]hatever the continuing validity of

Chevron Oil . . . there is not the sort of grave disruption or inequity involved in

awarding retrospective relief to this petitioner that would bring that doctrine into

play.”).

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Relevant factors include, but are not limited to, how early in the litigation the

plaintiff first specified individual capacity claims, whether the plaintiff’s complaint

included a prayer for punitive damages, and whether the defendant declined to raise

a qualified immunity defense. 8 See, e.g., Powell, 391 F.3d at 23. The earlier that a

plaintiff indicates that she intends to pursue individual capacity claims, the more

compelling. Compare, e.g., Larez v. City of Los Angeles, 946 F.2d 630, 640 (9th

Cir. 1991) (specifying individual capacity claims for the first time in response to

motion to dismiss was early enough to be given weight) with Daskalea, 227 F.3d at

448-49 (specifying individual capacity claims for the first time during rebuttal

argument at trial, after repeated prior expressions by defense counsel that they

understood defendant to be sued in an official capacity, was too late to be given

weight); see also Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir. 2001) (en

banc) (motion specifying individual capacity claims filed one month after the

complaint was early enough, and “later pleadings, such as a response to a motion for

summary judgment” were also probative). Punitive damages are not available

against government officials sued in an official capacity, so inclusion of punitive

damages in a complaint suggests an intent to sue the official in her individual

capacity. See Powell, 391 F.3d at 23. And qualified immunity is a “personal

immunity defense[],” Graham, 473 U.S. at 166-67, so a defendant’s declining to

raise a qualified immunity defense suggests that the defendant is not on notice of the

potential for personal liability. See, e.g., Daskalea, 227 F.3d at 449.9

8

The capacity that a plaintiff alleges must be supported in the same way that

any other matter is supported under the Federal Rules of Civil Procedure.

Accordingly, the factors indicating that a plaintiff is alleging individual capacity

claims may look different at various stages over the course of proceedings. Some

factors, like punitive damages, may be relevant at the pleading stage; others, like the

absence of a qualified immunity defense, may play a role only at the summary

judgment stage. In other words, applying the ordinary rules of procedure, the

manner and degree of clarity required to answer the capacity question will change

over the course of proceedings.

9

The inference is not as strong in the other direction. In other words, a

defendant’s decision to raise a qualified immunity defense does not necessarily

suggest that she is on notice of individual capacity claims. Qualified immunity “is

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We emphasize that the considerations listed above do not constitute an

exhaustive list of relevant factors. Furthermore, “[n]o single factor is dispositive in

an assessment of the course of proceedings.” Powell, 391 F.3d at 22. If, after

analyzing the course of proceedings, the district court concludes that S.A.A. pleaded

individual capacity claims against Geisler, then it should deny Geisler’s motion for

summary judgment on that issue.

III. Conclusion

For the foregoing reasons, we reverse the grant of summary judgment and

remand for further proceedings consistent with this opinion.

SHEPHERD, Circuit Judge, with whom LOKEN, Circuit Judge, joins, dissenting.

I respectfully dissent for two reasons. First, the clear statement rule is

grounded in Federal Rule of Civil Procedure 8 and its requirement of a “short and

plain statement.” Second, the rule is sound; it is easy to understand and follow for

even a pro se plaintiff; and, as we have often noted, it vindicates the important

principle that qualified immunity is immunity from suit, not just from trial.

Federal Rule of Civil Procedure 8(a)(2) requires plaintiffs to set forth in the

complaint “a short and plain statement of the claim showing that the pleader is

entitled to relief.” The clear statement rule, our former, bright-line rule which has

been the law of this Circuit for over thirty years, required 42 U.S.C. § 1983 plaintiffs

to succinctly identify the capacity in which they were suing government agents, and

a failure to do so resulted in an interpretation of “the complaint as including only

official-capacity claims.” See Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619

an affirmative defense that must be pleaded by a defendant official,” Harlow v.

Fitzgerald, 457 U.S. 800, 815 (1982), and “failure to plead an affirmative defense

[generally] results in a waiver of that defense,” First Union Nat. Bank v. Pictet

Overseas Tr. Corp., 477 F.3d 616, 622 (8th Cir. 2007). Thus, an affirmative defense

of qualified immunity might merely reflect a defendant’s strategic decision (or

defense counsel’s habitual practice) to include all potential defenses.

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(8th Cir. 1995) (Arnold, C.J.). The rule is properly rooted in Rule 8(a)(2): What

could be shorter and plainer than using the words “individual capacity” when

describing the types of claims brought in the complaint? The clear statement rule

places public employee defendants on notice of the capacity in which they are

sued—the entire purpose of Rule 8—without needless, expensive litigation to

ascertain the capacity through the “course of proceedings”—our Court’s

yet-to-be-hammered-out, multi-part test. Indeed, the Court’s new pronouncement

threatens a return to “cryptic hint[s]” in the complaint which we have condemned.

Egerdahl, 72 F.3d at 620.

Further, the clear statement rule is grounded in the sound policy behind the

doctrine of qualified immunity. “[B]ecause ‘[t]he entitlement [to qualified

immunity] is an immunity from suit rather than a mere defense to liability,’” the

Supreme Court has “repeatedly . . . stressed the importance of resolving immunity

questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224,

227 (1991) (per curiam) (second alteration in original) (citation omitted). We have

also emphasized the importance of the qualified immunity question being raised and

resolved early:

Both the Supreme Court and this circuit “‘repeatedly have stressed the

importance of resolving immunity questions at the earliest possible

stage in litigation.’” We stress the importance of doing the qualified

immunity analysis early in litigation because those entitled to qualified

immunity hold “an entitlement not to stand trial or face the other

burdens of litigation.” This “entitlement is an immunity from suit rather

than a mere defense to liability; and . . . it is effectively lost if a case is

erroneously permitted to go to trial.”

O’Neil v. City of Iowa City, 496 F.3d 915, 917 (8th Cir. 2007) (citations omitted);

see also Ashcroft v. Iqbal, 556 U.S. 662, 685 (2009) (“The basic thrust of the

qualified-immunity doctrine is to free officials from the concerns of litigation,

including ‘avoidance of disruptive discovery.’” (citation omitted)). We elaborated

in Payne v. Britten:

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The potentially lost benefits of qualified immunity include the costs

and expenses of litigation, and discovery in particular, which is a type

of burden distinct from appeals and other lawyer-driven aspects of a

case. Other lost benefits include the lost opportunity to appeal to our

court and, ultimately, to petition the Supreme Court for certiorari.

749 F.3d 697, 700-01 (8th Cir. 2014).

The clear statement rule “guarantees that the defendant receives prompt notice

of his or her potential personal liability.” Nix v. Norman, 879 F.2d 429, 431 (8th

Cir. 1989). Now, by virtue of the court’s abandonment of our time-tested rule,

“public servant[s]” who are potentially “expose[d] . . . to compensatory and punitive

damages” must play a potentially ruinous guessing game to ascertain the capacity in

which they are sued, a non-issue under our former rule. Id.

Moreover, public servants are now required to throw out a smattering of

defenses in their answer to counteract plaintiffs who do not plead an individual

capacity claim “with the requisite clarity” we formerly required. Id. While the

majority notes that some defense attorneys may already have this practice, see ante,

at 9 n.9, it ignores the fact that we now mandate that all defense counsel adopt this

practice or risk waiving a meritorious defense. Even worse, “the manner and degree

of clarity required to answer the capacity question will change over the course of

proceedings.” Ante, at 9 n.8. By abrogating the clear statement rule, we needlessly

increase litigation costs and obscure an easily understood rule that has benefitted

§ 1983 defendants as well as plaintiffs for decades. 10

10

The majority claims that the clear statement rule enabled cases to “turn[] on

technicalities,” ante, at 6 (citation omitted), but this ignores Federal Rule of Civil

Procedure 15(a)(2), which counterbalances our former rule and allows district courts

to “freely give leave when justice so requires.” See, e.g., Sedlmeier v. Kaemingk,

No. 4:13-CV-04136-KES, 2015 WL 4663753, at *1 (D.S.D. Aug. 6, 2015) (noting

that a pro se plaintiff “asked for and was granted relief to file a second amended

complaint” to “indicate whether [the] defendants were being sued in their individual

or official capacities”). Indeed, in this case the district court allowed S.A.A. to

amend her complaint three times.

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Finally, the Supreme Court has not indicated that the course of proceedings

approach is preferable. To the contrary, in Hafer v. Melo, the Supreme Court

acknowledged the inter-circuit conflict between the clear statement rule and course

of proceedings test but declined to resolve the split as the issue was not properly

before the Court. 502 U.S. 21, 24 n.* (1991). In so doing, the Court

“reiterate[d] . . . that ‘[i]t is obviously preferable for the plaintiff to be specific in the

[initial pleading] to avoid any ambiguity.’” Id. (second alteration in original)

(citation omitted). This acknowledgement reaffirms the notion that unanimity by

our sister circuits does not mean they are inherently correct. Our clear statement

rule is easy for litigants to understand and courts to apply—I see no reason to replace

it with another multi-factor test.

I respectfully dissent.

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