Schultea v. WoodSchultea v. Wood
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
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
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
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.
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
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
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
II.
In Elliott, we held that in suits filed under
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
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
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
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
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
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
[t]he heightened pleading standard is a departure from the usual pleading requirements of
Federal Rules of Civil Procedure 8 and9(b) , and departs also from the normal standard for summary judgment underRule 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
IV.
Qualified immunity‘s limits upon access to the discovery process create a new and large role for the
Thus the Civil Rules anticipate a reduced, but not eradicated, role for the
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.
We do not read
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 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
None of this draws upon the authority of
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
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
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
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
Moreover, the Chief Justice‘s mode of analysis confirms that the Supreme Court did not cast doubt on the propriety of Elliott 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
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
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.
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 1791. The three justices in dissent, while disagreeing as to
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
To say this is not, however, to conclude that
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:
Until now, we have required that
Because the standards that once governed a plaintiff‘s allegations regarding qualified immunity will not apply to a
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
The majority‘s