Lopez v. Ramirez

Case: 25-40170 Document: 100-1 Page: 1 Date Filed: 05/27/2026

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

May 27, 2026

No. 25-40170

____________ Lyle W. Cayce

Clerk

Marin Lopez; Pedro Bermea; Trinidad Lopez; Arturo

Menchaca; Eladio Bermudez; Javier Garcia; Robert

Guerra; Luis Carlos Gonzalez; Epigmenio “TJ”

Gonzalez; Juan Garcia, Jr.; Julio Eguia; Aaron Garcia,

Plaintiffs—Appellees,

versus

Eduardo Ramirez; Noe Castillo; Basilio D. Villareal,

Jr.; Roel Gonzalez,

Defendants—Appellants.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:20-CV-33

______________________________

ON PETITION FOR PANEL REHEARING

Before Willett, Wilson, and Douglas, Circuit Judges.

Per Curiam:*

_____________________

*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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Treating the petition for rehearing en banc as a petition for panel

rehearing, the petition for panel rehearing is GRANTED. See 5th Cir. R.

35 I.O.P. Our prior panel opinion, Lopez v. Ramirez, No. 25-40170, 2026 WL

893104 (5th Cir. Apr. 1, 2026) (unpublished), is WITHDRAWN and the

following opinion is SUBSTITUTED therefor:

This is the third interlocutory appeal following the district court’s

denial of an immunity-based motion to dismiss in a First Amendment

retaliation suit brought by twelve school-district employees against three

school-board members and a former interim superintendent. Twice before

we have vacated the district court’s orders and remanded because it denied

Defendants’ motions without analysis. This time, the district court referred

the case to mediation and, in the same order, denied Defendants’ motion

without prejudice to refiling the same after mediation concluded. Because the

district court’s mediation order was not an appealable final decision for

purposes of 28 U.S.C. § 1291, we DISMISS for lack of jurisdiction.

I

Twelve employees of the Rio Grande City Consolidated Independent

School District allege that after they publicly supported a slate of candidates

in a 2018 school-board election, they were demoted, reassigned, and

subjected to pay cuts in retaliation for their speech. They brought First

Amendment retaliation claims under 42 U.S.C. § 1983 against board

members Eduardo Ramirez, Noe Castillo, and Basilio D. Villareal, Jr., and

former interim superintendent Roel Gonzalez. Defendants moved to dismiss

on multiple grounds including absolute legislative immunity and,

alternatively, qualified immunity.

The district court denied Defendants’ motion “without prejudice to

refiling as a motion for summary judgment” in a minute-entry order with no

analysis or reasons given. Defendants filed their first interlocutory appeal.

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We vacated and remanded “to allow the district court to reassess

[Defendants]’ motion on a plaintiff-by-plaintiff, defendant-by-defendant

basis and assign reasons for its subsequent decision.” Lopez v. Ramirez, No.

21-40235, 2022 WL 3230442, at *2 (5th Cir. Aug. 10, 2022) (per curiam)

(unpublished) (Lopez I). On remand, the district court permitted Plaintiffs to

file an amended complaint. Defendants again moved to dismiss on immunity

grounds among others, and the district court again denied the motion in a

similar minute-entry order without explanation. And we again vacated and

remanded, observing that “for the second time, the district court not only

provided no individualized analysis as to each officer’s entitlement to either

legislative or qualified immunity, it provided no analysis period.” Lopez v.

Ramirez, No. 23-40461, 2024 WL 1168048, at *2 (5th Cir. Mar. 15, 2024)

(per curiam) (unpublished) (Lopez II).

On the second remand, Defendants refiled their motion to dismiss.

The district court heard argument on the motion and noted that it “w[ould]

issue [a] ruling.” On March 31, 2025, the district court issued a mediation

order that acknowledged “[c]urrently before the Court is a Motion to

Dismiss of the Defendants,” observed the suit’s “extensive procedural

history,” and found “the parties would benefit from proceeding before a

Magistrate in a mediation setting.” The order referred the parties to a

magistrate judge for mediation, and provided:

Rule 16 Scheduling Order deadlines and pending settings are

hereby cancelled. All pending motions are denied without

prejudice to refiling same in writing within seven (7) days after

Notice from Magistrate Judge Hacker to this Court that

mediation has concluded if the mediation was unsuccessful and

without any waiver of a substantive or procedural right of any

party with regard to any motion which may be filed or refiled.

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Defendants timely noticed this third interlocutory appeal. In the interim, the

parties “almost immediately” reported to the magistrate judge that

mediation would be unproductive. The magistrate judge “agreed not to

conduct the mediation.”

II

We begin, as always, with jurisdiction. Backe v. LeBlanc, 691 F.3d 645,

647 (5th Cir. 2012) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,

94–95 (1998)). Both parties contend that the collateral order doctrine

supplies appellate jurisdiction here. But neither addressed whether that

doctrine reaches an order that denied Defendants’ immunity-based motion

to dismiss only as an incident of a mediation referral and without prejudice to

refiling the same if mediation failed. We requested supplemental briefing on

that point. Having reviewed the parties’ responses, we hold that it does not.

Our jurisdiction is limited to appeals from “final decisions” of the

district courts. 28 U.S.C. § 1291. The collateral order doctrine, however,

permits immediate appellate review of a “small class” of interlocutory orders

“that are conclusive, that resolve important questions separate from the

merits, and that are effectively unreviewable on appeal from the final

judgment in the underlying action.” Mohawk Indus., Inc. v. Carpenter, 558

U.S. 100, 106 (2009) (quoting Swint v. Chambers Cnty. Comm’n, 514 U.S. 35,

42 (1995)). The doctrine is narrow by design, and its conditions are

“stringent.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868

(1994).

Orders denying dispositive pretrial motions asserting immunity from

suit ordinarily satisfy that standard, and the same is true of orders that decline

or refuse to rule on an immunity claim. See Walton v. City of Verona, 82 F.4th

314, 320 (5th Cir. 2023) (collecting cases); Helton v. Clements, 787 F.2d 1016,

1017 (5th Cir. 1986). Such an order, the Supreme Court has explained,

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“conclusively” determines the immunity question in either of two ways. See

Mitchell v. Forsyth, 472 U.S. 511, 527 (1985). First, “it may represent the trial

court’s conclusion that even if the facts are as asserted by the defendant, the

defendant’s actions . . . are [ ] not within the scope of the qualified

immunity.” Id. Second, the court “may rule only that if the facts are as

asserted by the plaintiff, the defendant is not immune.” Id. In either case, the

order is effectively unreviewable on later appeal because it deprives the

defendant of immunity’s protection against “standing trial” and avoiding the

burdens of “such pretrial matters as discovery” where possible. Id. at 526

(citing Harlow v. Fitzgerald, 457 U.S. 800, 816–18 (1982)); see also Behrens v.

Pelletier, 516 U.S. 299, 308 (1996); Helton, 787 F.2d at 1017. Once those

burdens are imposed, the right immunity confers cannot be remedied on

appeal from final judgment. Mitchell, 472 U.S. at 526–27 (citing Harlow, 457

U.S. at 816–19).

These principles explain why we had jurisdiction to consider the first

two interlocutory appeals in this case. In the first, the district court “denied”

Defendants’ immunity-based motion to dismiss “without prejudice to refile

as a motion for summary judgment.” Lopez I, 2022 WL 3230442, at *1. In the

second, the court “summarily denied Defendants’ motion without prejudice

in a minute-entry order.” Lopez II, 2024 WL 1168048, at *1. Each

conclusively rejected an immunity-based defense at the pleadings stage,

addressed an issue distinct from the merits, and required Defendants

continue litigating despite their asserted right not to, which could not be

meaningfully reviewed after final judgment.

The mediation order before us is different. True, the court “denied”

all pending motions, including Defendants’ motion to dismiss. But it did so

without prejudice as an incident of referring the case to mediation. The court

made plain that the immunity question could be taken up after mediation

concluded on a refiled motion to dismiss and preserved Defendants’

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“substantive or procedural right[s] . . . with regard to any motion which may

be filed or refiled.” At the same time, the court effectively suspended the

litigation by canceling all scheduling-order deadlines and pending settings.

This is not the order of a court that “intends to have nothing further to do . .

. with the motion.” Ueckert v. Guerra, 38 F.4th 446, 450 (5th Cir. 2022)

(quoting State Nat. Bank of El Paso v. United States, 488 F.2d 890, 893 (5th

Cir. 1974)). Nor is it a flat “refusal to rule on a claim of immunity until trial.”

Helton, 787 F.2d at 1017.

Put plainly, the order did not conclusively deny Defendants’ asserted

immunity; the district court offered no analysis of the issue whatsoever.

Given the peculiar (and tortured) procedural history of this case, and given

that the parties and the magistrate judge immediately concluded that the

ordered mediation would not be productive and therefore would not be

conducted, the district court’s order did not impose the litigation burdens

immunity is designed to prevent.

Defendants highlight Carswell v. Camp, 54 F.4th 307 (5th Cir. 2022),

and Ashley v. Clay County, 125 F.4th 654 (5th Cir. 2025), as compelling an

opposite result. Both are distinguishable. In Carswell, the district court issued

a scheduling order that denied an immunity-based motion to dismiss without

prejudice, “postponed ruling on the immunity issue until summary

judgment,” and permitted discovery against the individual defendants in the

meantime. 54 F.4th at 309–11. We found that arrangement “‘effectively . . .

denied [defendants] the benefits of the qualified immunity defense’ and

‘vest[ed] this court with the requisite jurisdiction to review the discovery

order.’” Id. at 311 (quoting Wicks v. Miss. State Emp. Servs., 41 F.3d 991, 994

(5th Cir. 1995)). The mediation order here did the opposite. It cancelled all

scheduling-order deadlines, halted pending settings, and preserved

Defendants’ substantive and procedural rights. The hallmark of Carswell, the

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imposition of active litigation burdens despite an unresolved immunity claim,

is absent here.

Ashley is the closer case but is equally unavailing. There, a former

hospital employee sued Clay County and its county-owned hospital, alleging

First Amendment retaliation and a violation of the Texas Occupations Code.

Ashley, 125 F.4th at 657–58. The hospital moved to compel arbitration under

an employment agreement. Id. at 658. The County asserted governmental

immunity under Texas law and moved to dismiss. Id. Rather than address the

County’s immunity defense, the district court sua sponte compelled the

County to arbitrate alongside the hospital and denied the County’s motion to

dismiss as moot. Id. We held that the district court’s refusal to address the

issue of the County’s immunity before compelling arbitration and denying

the County’s motion to dismiss constituted a “final decision” under 28

U.S.C. § 1291. Id. at 661. Two features of Ashley that drove the outcome are

absent here.

First, the County’s governmental immunity defense, if successful,

“operates as a jurisdictional bar” that would have prevented the district

court from compelling arbitration. Id. This created an “underlying

jurisdictional tension” between governmental immunity and the Federal

Arbitration Act’s (“FAA”) statutory bar on interlocutory appeals of

arbitration orders under 9 U.S.C. § 16(b)(2). Id. at 660. To resolve that

tension, we framed the question as “whether the district court properly

addressed its own jurisdiction to compel arbitration.” Id. And because the

district court denied the County’s immunity defense, thereby failing to

assure itself of its own authority to compel the County to arbitrate “in

accordance with established principles of jurisdictional authority,” the

decision was final for purposes of § 1291. Id. at 661. Defendants here assert

absolute legislative and qualified immunity, neither of which concern the

district court’s jurisdiction. Nevada v. Hicks, 533 U.S. 353, 373 (2001)

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(“There is no authority what[so]ever for the proposition that absolute- and

qualified-immunity defenses pertain to the court’s jurisdiction[.]”); see also

St. Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 77 n.4 (2d Cir.

2007) (“[L]egislative immunity is not a jurisdictional bar . . . .”).1

Second, the district court’s order in Ashley eliminated the County’s

opportunity to obtain a pretrial immunity ruling. By compelling the County

to arbitrate before resolving immunity, 125 F.4th at 658, the district court

shifted resolution of the merits to another forum and bound the County to its

outcome. See Doe v. Tonti Mgmt. Co., 24 F.4th 1005, 1008–09 (5th Cir. 2022).

Such an order consigns the immunity-asserting defendant to merits-stage

proceedings in that other forum, with no mechanism to obtain a pretrial

immunity ruling. By contrast, nothing in the district court’s order here

eliminated Defendants’ ability to press their immunity defense. It deferred a

ruling, but it also deferred discovery, case management deadlines, and the

like, while expressly preserving Defendants’ right to refile their immunity

motion.

The record reinforces that, in this case at least, the district court’s

order did not constitute an effective denial of Defendants’ immunity defense.

Defendants concede that the parties “almost immediately” reported to the

magistrate judge that mediation would be unproductive, and that “the

magistrate judge agreed not to conduct the mediation.” The mediation order

_____________________

1

The Eleventh Circuit’s decision in Bouchard Transp. Co. v. Fla. Dep’t of Env’t

Prot., 91 F.3d 1445 (11th Cir. 1996), is distinguishable for the same reason. The immunity

defense there was Eleventh Amendment immunity, which “is in the nature of a

jurisdictional bar” and which protects sovereign states from the very “indignity” of being

subjected to private suit. Id. at 1448 (quoting P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,

Inc., 506 U.S. 139, 146 (1993)). In other words, the Eleventh Amendment’s “ultimate

justification is the importance of ensuring that the States’ dignitary interests can be fully

vindicated.” Puerto Rico, 506 U.S. at 146.

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expressly contemplated the next step: that the immunity question would be

taken up on a refiled motion. The order is, in substance, a case-management

deferral pending a discrete, nonbinding event that Defendants emphasize

never occurred, not a conclusive determination of anything.

Our unpublished decision in De Leon v. Munoz, No. 24-40215, 2025

WL 957500 (5th Cir. Mar. 31, 2025) (per curiam) (unpublished), points the

same way.2 There, the district court denied a defendant’s motion to dismiss

on qualified immunity “without prejudice to his right to refile after

mediation.” Id. at *1 n.2, *4. The defendant later filed a second motion to

dismiss, which the district court again denied. Id. at *4–*5. The defendant

noticed his appeal within thirty days of the second order. Id. at *1 n.2. The

plaintiff argued the first order triggered the notice deadline, rendering the

appeal untimely. Id. We disagreed, holding that the court’s “denial of

[defendant]’s first motion to dismiss . . . without prejudice to his right to

refile after mediation . . . was not a final, unequivocal refusal to render a

pretrial determination of [defendant]’s qualified immunity defense,” and

thus “was not an appealable final decision for purposes of 28 U.S.C. § 1291.”

Id. (citing Ueckert, 38 F.4th at 453).

At bottom, the result here, as in De Leon, follows from the two grounds

the Supreme Court identified in Mitchell. The mediation order does not

“represent the trial court’s conclusion” that, on Defendants’ version of the

facts, immunity does not apply, Mitchell, 472 U.S. at 527, because the district

court conducted no immunity analysis at all. Nor does it deprive Defendants

of immunity’s protection against “standing trial” or against “such pretrial

matters as discovery.” Mitchell, 472 U.S. at 526 (citing Harlow, 457 U.S. at

_____________________

2

Unpublished opinions issued on or after January 1, 1996, are not binding

precedent, but they may be persuasive authority. Ballard v. Burton, 444 F.3d 391, 401 n.7

(5th Cir. 2006); 5th Cir. R. 47.5.4.

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816–18); Behrens, 516 U.S. at 308. The order suspended discovery, cancelled

case-management deadlines, and contemplated that any immunity ruling

would be made on a refiled motion following a nonbinding mediation that

Defendants concede never occurred. Because the order neither rejected the

immunity defense nor imposed the litigation burdens immunity exists to

prevent, it is not an appealable final decision for purposes of § 1291.3

III

We DISMISS the appeal for lack of appellate jurisdiction.

_____________________

3

We again note our concern that the district court has yet to provide the reasoned,

individualized analysis necessary to resolve Defendants’ immunity assertions. Immunity is

an entitlement to avoid not just liability, but also the burdens of litigation. Mitchell, 472 U.S.

at 526. Those issues should be addressed promptly and consistently with this court’s earlier

mandates on a refiled motion to dismiss, rather than further deferred without explanation.

The case now proceeds before Chief Judge Crane, to whom it has since been reassigned.

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