# James Elliott and Joseph Defley v. Leander H. Perez, Jr., Etc., Eugene E. Leon, Jr., Etc., and Frank Klein

> Court of Appeals for the Fifth Circuit · February 7, 1985 · 751 F.2d 1472

URL: https://www.frixlaw.com/law-library/cases/9473008

## Case

- **Full name:** James ELLIOTT and Joseph Defley, Plaintiffs-Appellants, v. Leander H. PEREZ, Jr., Etc., Defendant, Eugene E. Leon, Jr., Etc., and Frank Klein, Defendants-Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** February 7, 1985
- **Citations:** 751 F.2d 1472; 1 Fed. R. Serv. 3d 382; 1985 U.S. App. LEXIS 27967
- **Precedential status:** Published
- **Opinion:** Concurrence by Higginbotham
- **Judges:** Higginbotham, Clark, Brown
- **Cited by:** 315 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9473008

## Opinion text

PATRICK E. HIGGINBOTHAM,
concurring specially:
In his own inimitable way, Judge Brown has threaded his way to a sound result. It is a threading task because we must accommodate an exquisite confrontation: on the one hand, defendants enjoy an immunity from suit which reaches beyond trial and protects them from the debilitating processes of discovery; on the other hand, the notice pleading concepts rest on acceptance *1483 of the idea that one may sue now and discover later what his claim is. My notions of Article III versus Article I power require me to follow a more modest path, but I reach the same conclusion.
Federal Rule of Civil Procedure 9(b) provides that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” Congress, of course, sanctioned Rule 9(b) in the Enabling Act, 28 U.S.C. § 2072 , but I do not know where we find the authority to add the requirement that claims against officials who enjoy immunity from suit shall be pled with particularity. Nor do I see that it is necessary to the result to do so. Rather, I would conclude that no claim is stated against officials who hold positions which enjoy absolute immunity absent a statement of sufficient facts which, if true, would demonstrate the absence of immunity. If the filing of a complaint grants immediate access to our elaborate discovery machine and our substantive law teaches that such access is not available in immunity cases, it follows for me that absent the detailing of facts sufficient to negative immunity, no federal claim is stated. In other words, our task is, in the first instance, one of deciding what the claim is; what is short and plain has no universal meaning independent of the nature of a claim. It does no violence to notice pleading to suggest that the adequacy of a pleading is case specific.
This is not dissimilar from the effort to accommodate notice pleading in antitrust cases where a plaintiff seeks relief for conduct which is prima facie protected by the First Amendment under the Noerr-Pen-nington doctrine. See generally P. Aree-da, Antitrust Law 1203.4b (1982 Supp.). In this circumstance, courts have said that “the danger that the mere pendency of the action will chill the exercise of First Amendment rights requires more specific allegations than would otherwise be required.” Franchise Realty Interstate Corp. v. San Francisco Local Joint Executive Board of Culinary Workers, 542 F.2d 1076, 1083 (9th Cir.1976). While this effort in the antitrust cases to heighten pleading requirements while remaining faithful to Fed.R.Civ.P. 8 has been the subject of continuing debate, compare, e.g., Hydro-Tech Corp. v. Sundstrand Corp., 673 F.2d 1171 , 1177 n. 8 (10th Cir.1982), with Sage International, Ltd. v. Cadillac Gauge, 507 F.Supp. 939 (E.D.Mich.1981), it supports our attempt to preserve the essence of the immunity defense by requiring specific allegations here.
That such an approach is not a judicial amendment to Rule 9(b) but is rather a definition of the claim is more convincing in the immunity context. If immunity protects a defendant from the discovery process, as it does, 1 and the statement of a claim grants access to that process, as it does under notice pleading, then a well-pleaded claim must overcome the immunity. Of course, some plaintiffs will be unable to state a claim without the benefit of discovery, even though discovery might have surfaced sufficient facts, but denial of some meritorious claims is the direct product of the immunity doctrine which weighed these losses when it struck the policy balance. This, at least for me, only makes the plainer that I am on sure ground in concluding that the accommodation of notice pleading and immunity presents a question of claim definition, peculiarly within the authority granted to us by Article III.
This is far more than a semantical shell game. We must solve judicial problems, and we must not solve legislative problems. My effort has been to demonstrate that it is a judicial problem — defining the content of immunity — that we face here. By this path, I reach the same conclusion as the majority and therefore join its result.
. While the Court has not yet explicitly assured officials enjoying absolute immunity freedom from all discovery processes, as the majority opinion points out, the Court has made efforts to vindicate the values of immunity by circumscribing where possible the right to subject officials to trial or traditional discovery concerning acts for which they are likely immune.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9473008. Public record. Not legal advice.