Joseph M. Schultea, Sr. v. David Robert Wood, David Robert Wood, Homer Ford, W.F. "Slim" Plagens and Warren K. Driver

EDITH H. JONES, Circuit Judge,

with whom, GARWOOD, JOLLY and BARKSDALE, Circuit Judges, join, specially concurring and JONES, GARWOOD and JOLLY, Circuit Judges, also concur in the majority opinion:

Our court considered this case en banc purportedly to answer whether Leatherman v. Tarrant County Narcotics Intelligence & Coordination, — U.S.-, 113 S.Ct. 1160 , 122 L.Ed.2d 517 (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. 1

*1435 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 -, 113 S.Ct. 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 east doubt on the propriety of Elliott v. Perez as applied to claims against government officials. The respondent in Leather-man 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 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 Leather-man undermines the vitality of heightened pleading in qualified immunity eases. Branch v. Tunnell, 14 F.3d 449, 456-57 (9th Cir.), cert. denied, — U.S.-, 114 S.Ct. 2704 , 129 L.Ed.2d 832 (1994) (Branch II); Kimberlin v. Quinlan, 6 F.3d 789 , 794 n. 9 (D.C.Cir.1993), cert. granted, — U.S.-, 115 S.Ct. 929 , 130 L.Ed.2d 876 (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 , 100 S.Ct. 1920 , 64 L.Ed.2d 572 (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 Scalia, Judges Ken Starr and Harry Edwards concluded in 1984 that Harlow required heightened pleading in the plaintiffs complaint. Hobson v. Wilson, 737 F.2d 1, 29 (D.C.Cir.1984). 2 Of course, Judge Higginbotham avoids such anomalies by asserting that Gomez was suspended until Siegert v. Gilley, 500 U.S. 226 , 111 S.Ct. 1789 , 114 L.Ed.2d 277 (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 235 , 111 S.Ct. at 1795 (citing Harlow, 457 U.S. 800 , 102 S.Ct. 2727 (1982)). He left no room for doubt:

*1436 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.

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 227-29, 111 S.Ct. at 1791 . The three justices in dissent, while disagreeing as to the merits of the constitutional issue, nonetheless also recognized the necessity for some form of heightened pleading in qualified immunity cases. Id. at 238-47 , 111 S.Ct. at 1797-1801 (Marshall, J. dissenting). Accordingly, four justices endorsed a heightened standard in qualified immunity and none disagreed. Finally, the holding of Siegerb 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 á la Siegerb either, for he concedes that “Sie-gerb ’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/Siegerb requiring a defendant to plead qualified immunity is inconsistent with heightened pleading. And to the extent Judge Higginbotham’s implication from Gomez/Siegerb 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 , 125 L.Ed.2d 407 (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 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., 41 F.3d 991 (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.

. 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,U.S. -, 113 S.Ct. 1586 , 123 L.Ed.2d 153 (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), cert. denied, 493 U.S. 1088 , 110 S.Ct. 1156 , 107 L.Ed.2d 1059 (1990); Elliott v. Thomas, 937 F.2d 338, 344-45 (7th Cir.1991), cert. denied, 502 U.S. 1074 , 112 *1435 S.Ct. 973 , 117 L.Ed.2d 138 (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).

. 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).