The opinion
MIKVA, Circuit Judge,
dissenting:
I dissent from the order and opinion of my colleagues because I think nothing in Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982) was intended to deprive a federal judge of the power to obtain the necessary facts to resolve questions presented to him. This power can be exercised by requesting affi *555 davits or admissions, or by holding a preliminary hearing. To insist that the judge proceed to a full-scale trial of the main cause of action before the preliminary question of immunity can be resolved defeats much of the purpose of Harlow , which was to allow immunity matters to be resolved at the earliest and least intrusive point in the case. We do defendants no favor by sending this matter'back under an order to resolve disputed facts without a hearing. The concern that defendants will be deprived of discovery if the trial judge finds no immunity could be met by treating the judge’s findings on immunity as preliminary, subject to additional evidence presented at trial. To force the trial before knowing the facts on immunity negates the efficacy that Harlow was intended to provide. I would allow the judge to proceed as he had ordered.