
    Jerry L. VAUGHN, Plaintiff-Appellee, v. UNITED STATES SMALL BUSINESS ADMINISTRATION, et al., Defendants, John Whitmore, individually and in his capacity as Acting Associate Administrator of the Office of Minority Small Business & Capital Ownership Development, SBA, Defendant-Appellant.
    No. 93-5104.
    United States Court of Appeals, Sixth Circuit.
    April 23, 1996.
    Before: ENGEL, JONES, and SUHRHEINRICH, Circuit Judges.
   ORDER

ENGEL, Circuit Judge.

Appellee Jerry Vaughn has petitioned the court for rehearing and rehearing en banc of our earlier decision and opinion decided and filed herein September 21, 1995. Vaughn v. United States Small Business Admin., 65 F.3d 1322 (6th Cir.1995). The petition having been circulated not only to the original panel members but also to all other active judges of this court, and no judge of this court having requested a vote on the suggestion for rehearing en banc, the petition for rehearing has been referred to the original hearing panel.

A majority of the panel being of the opinion that the petition should be denied but that the original opinion should be supplemented, rehearing is DENIED. Judge Jones adheres to his views originally expressed in his dissent and would affirm the judgment of the district court for the reasons earlier expressed by him.

Petitioner makes three arguments for rehearing:

I

Vaughn asserts that the original opinion failed to follow the admonition of Johnson v. Jones, — U.S. -, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), that appeal from the denial of a motion to dismiss or a motion for summary judgment on grounds of qualified immunity is impermissible when the issue turns on a dispute of fact:

[W]e hold that a defendant, entitled to invoke a qualified-immunity defense, may not appeal a district court’s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a “genuine” issue of fact for trial.

Id. at-, 115 S.Ct. at 2159. Essentially, Vaughn argues that because the original opinion in his case did not address the abstract legal question of whether the right allegedly violated was a clearly established one, the opinion violates the dictates of Johnson. We disagree.

We agreed that Vaughn had an “unquestionable right to be free of race- and handicap-based government decisionmaking,” Vaughn, 65 F.3d at 1327, and acknowledged that he may well have suffered a violation of it at the hand of others against whom the statute of limitations had already run. Vaughn’s problem was, and is, that he has failed to state a cognizable claim of any right, let alone a clearly established right, that was violated by the defendant Whitmore. Our articulation of this finding was not violative in any way of Johnson. Our opinion technically employed a Fed.R.Civ.P. 12(b)(6) analysis, which is consistent with our circuit’s earlier holding in Carlson v. Conklin, 813 F.2d 769 (6th Cir.1987), that on interlocutory appeal an appellate court is not confined to a review of the viability of a qualified immunity defense but may inquire whether a plaintiff has stated an actionable claim under 42 U.S.C. § 1983. Id. at 770-71; see also Black v. Parke, 4 F.3d 442, 445 (6th Cir.1993) (following Carlson). In short, there may be a genuine issue of fact as to whether Vaughn’s clearly established rights were violated by others not party to this suit, but plainly Whitmore’s liability cannot rest upon respon-deat superior, which is at best what the complaint alleges, beyond the vague and generalized allegation of the type condemned by the . Supreme Court as inadequate in Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987).

Our decision is also entirely consistent with Sanderfer v. Nichols, 62 F.3d 151 (6th Cir.1995). In Sanderfer, we acknowledged that the plaintiff, a prisoner, had a clearly established right to be-free of deliberate indifference to his medical need, but, citing Johnson, we held that a district court order denying the defendant’s motion for summary judgment on the basis of qualified immunity was reviewable on interlocutory appeal because it involved not the sufficiency of the plaintiffs evidence but whether he could state a claim at all. Id. at 153-54 & n. 2. Our original opinion in the instant case notes that Whitmore “had no discretion,” Vaughn, 65 F.3d at 1328, and that “no failure to act outside the accepted statutory criteria can violate a clearly established right,” id. at 1330. Our factual inquiry in reaching our decision was different from the one deemed impermissible by the Supreme Court in Johnson. In Johnson, the three defendants who appealed the denial of their motion for summary judgment argued that there was not a scintilla of evidence in support of the plaintiffs claim that they had beaten him. They did not argue that beating the plaintiff would not have violated, a clearly established right of the plaintiff. Whitmore has argued, and we have agreed, that under the facts as alleged by Vaughn, he did not violate any of Vaughn’s clearly established rights. We did not impermissibly address the sufficiency of the evidence; we held merely that there was no way in which Whitmore could have violated one of Vaughn’s clearly established rights.

II

Vaughn next claims that our opinion, by citing to Chapman v. City of Detroit, 808 F.2d 459 (6th Cir.1986), and Nuclear Transport & Storage, Inc. v. United States, 890 F.2d 1348, 1354-55 (6th Cir.1989), cert. denied, 494 U.S. 1079, 110 S.Ct. 1807, 108 L.Ed.2d 938 (1990), see Vaughn, 65 F.3d at 1327, applied a “heightened pleading” standard to the allegations in the complaint as condemned in Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). We need not here decide whether that standard, condemned in actions against municipalities, applies to suits alleging the personal liability of public employees; this issue was left open in Leatherman. Id. at 165-67, 113 S.Ct. at 1162. As we have made clear above, our decision stands on firmer and more traditional grounds. If a contrary implication was read into our citations to Chapman and Nuclear Transport, it was unfortunate and unintended.

III

Finally, Vaughn asserts that the court erred in considering an issue not raised below. This issue, which was the subject of Judge Jones’ dissent, has been fully addressed in the opinion originally filed and we adhere to our views as earlier stated.

The panel has further reviewed the petition for rehearing and concludes that two of the issues raised in the petition were fully considered upon the original submission and decision of the case and that petitioner’s other argument is without merit. Accordingly, the petition is denied.

Judge NATHANIEL R. JONES would grant rehearing for the reasons stated in his dissent.  