Wertenbroch v. Hardeman

Case: 25-40616 Document: 45-1 Page: 1 Date Filed: 06/03/2026

United States Court of Appeals

for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

FILED

No. 25-40616 June 3, 2026

____________

Lyle W. Cayce

Patrica Anna Wertenbroch; Kulwant Singh Atwal, Clerk

Plaintiffs—Appellees,

versus

Clint Hardeman, City Manager, City of Pittsburg, Texas,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 2:24-CV-1075

______________________________

Before Clement, Southwick, and Engelhardt, Circuit Judges.

Edith Brown Clement, Circuit Judge:

Does an appellate court have jurisdiction under the collateral-order

doctrine to review a district court order that denies a Rule 12(b)(6) motion

for failure to state a claim—the substantive basis of the disposition—but does

not expressly address or resolve a defendant’s qualified immunity defense?

I

Plaintiffs-Appellees Patricia Anna Wertenbroch and Kulwant Singh

Atwal brought this civil rights action under 42 U.S.C. § 1983 against

Defendant-Appellant Clint Hardeman, in his individual and official capacity

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No. 25-40616

as City Manager for the City of Pittsburg, Texas. Plaintiffs allege that the City

Manager’s Office racially discriminated against them in violation of the Equal

Protection Clause of the Fourteenth Amendment by failing to investigate

reported crimes on their properties, listing their properties on the market

without their consent, and unequally enforcing the city code against them.

Hardeman moved to dismiss under Rule 12(b)(6), asserting that

Plaintiffs (1) failed to state a plausible equal protection claim, (2) were barred

from asserting their claim against the Camp County Central Appraisal

District, (3) failed to assert a viable Monell claim against the City of Pittsburg,

(4) failed to plead any personal involvement by Hardeman in his individual

capacity, and (5) failed to plead any facts that would plausibly deny

Hardeman qualified immunity. The motion to dismiss was referred to a

magistrate judge, who issued a report and recommendation (“R&R”) that

offered only the following reasoning:

After a careful review of the complaint and Plaintiffs’ response . . .,

the Court finds that the Motion should be DENIED. The Court finds

that the allegations in the complaint along with all inferences taken in

favor of Plaintiffs—while undoubtedly thin—make out a plausible

claim for an equal protection violation under the Fourteenth

Amendment.

The magistrate judge did not address Hardeman’s qualified immunity

defense in his R&R.

Hardeman timely objected to the R&R, raising the magistrate judge’s

“failure to rule on his qualified immunity defense” as the first of six

objections. The district court overruled his objections and adopted the R&R.

That order, too, never mentioned qualified immunity.

Hardeman timely appealed.

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II

Although the parties have not questioned our jurisdiction to review

this interlocutory appeal, we have a “special obligation” to independently

ensure that we have authority to review this appeal. Bender v. Williamsport

Area Sch. Dist., 475 U.S. 534, 541 (1986).

III

“Jurisdiction is always first.” Arulnathy v. Garland, 17 F.4th 586, 592

(5th Cir. 2021) (cleaned up). Generally, we have jurisdiction to review only

“final decisions” of the district courts. 28 U.S.C. § 1291. “A final decision is

one that ends the litigation on the merits and leaves nothing for the court to

do but execute the judgment.” Vantage Health Plan, Inc. v. Willis-Knighton

Med. Ctr., 913 F.3d 443, 448 (5th Cir. 2019). Yet we may also review under

the collateral-order doctrine appeals before entry of final judgment. In re

Deepwater Horizon, 793 F.3d 479, 483 (5th Cir. 2015). “The collateral-order

doctrine is an atextual exception to the longstanding final-judgment rule

embodied in 28 U.S.C. § 1291.” Heidi Grp., Inc. v. Texas Health & Hum.

Servs. Comm’n, 138 F.4th 920, 928 n.5 (5th Cir. 2025). Under this doctrine,

we have jurisdiction over a “small class” of interlocutory orders that (1)

“conclusively determine the disputed question,” (2) “involve a claim of

right separable from, and collateral to, rights asserted in the action,” and (3)

are “effectively unreviewable on appeal from a final judgment.” Mitchell v.

Forsyth, 472 U.S. 511, 524, 526–27 (1985) (cleaned up). Such appeals “are the

exception, not the rule.” Johnson v. Jones, 515 U.S. 304, 309 (1995).

A district court’s denial of qualified immunity to public officials, “to

the extent that it turns on an issue of law,” falls within the ambit of a “final

decision” under § 1291 “notwithstanding the absence of a final judgment.”

Mitchell, 472 U.S. at 530. That is because it “is an immunity from suit rather

than a mere defense to liability.” Pearson v. Callahan, 555 U.S. 223, 237

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(2009) (cleaned up); see also Mitchell, 472 U.S. at 525 (“[T]he denial of a

substantial claim of absolute immunity is an order appealable before final

judgment, for the essence of absolute immunity is its possessor’s entitlement

not to have to answer for his conduct in a civil damages action.”). Because

immunity presents “threshold questions,” it must be “resolved as early in

the proceedings as possible.” Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994)

(citing Siegert v. Gilley, 500 U.S. 226, 231–33 (1991)). Typically, qualified

immunity hinges on “whether the federal right allegedly infringed was

‘clearly established.’” Behrens v. Pelletier, 516 U.S. 299, 313 (1996) (citation

omitted). Yet if the district court expressly “declined to rule on qualified

immunity when it was so obligated, that may also be considered an appealable

final decision.” Armstrong v. Ashley, 918 F.3d 419, 422 (5th Cir. 2019) (citing

Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir. 1986) (per curiam)).

In Helton, after the defendants asserted qualified immunity in a

motion to dismiss, the district court issued an order expressly notifying that

it would not rule on any pending motions before trial. 787 F.2d at 1017. On

appeal, we considered “whether an order which declines or refuses to rule

on a motion to dismiss based on the defense of governmental immunity is an

immediately appealable order.” Id. Relying on the Mitchell conditions, we

held that the court’s order was immediately appealable because an order that

“declines or refuses” to rule on qualified immunity is functionally equivalent

to a denial of qualified immunity: “In both cases a defendant’s entitlement

under immunity doctrine to be free from suit and the burden of avoidable

pretrial matters is effectively lost if the case erroneously goes to trial.” Id.;

see also Backe v. LeBlanc, 691 F.3d 645, 647 (5th Cir. 2012) (holding that the

district court’s express refusal to rule on the defendant’s qualified immunity

defense “pending general discovery” was immediately appealable).

We have since declined to apply Helton to cases where the district

court did not expressly refuse to rule on qualified immunity but instead stated

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that a qualified immunity ruling was under advisement or pending resolution

based on an anticipated amended complaint. See, e.g., Meza v. Livingston, 537

F.3d 364, 367 (5th Cir. 2008) (did not apply to a qualified immunity defense

“under advisement”); Wooten v. Roach, 964 F.3d 395, 406 (5th Cir. 2020)

(did not apply because of an anticipated amended complaint). In Meza, the

defendants moved to dismiss and for summary judgment based on Eleventh

Amendment immunity. 537 F.3d at 365. The district court denied the

motions to dismiss as duplicative of the summary judgment motion, which it

referred to a magistrate judge. Id. At a later hearing, the district court stated

that the summary judgment motion was “under advisement.” Id. at 367. On

appeal, we declined to extend Helton’s “narrow holding” because the district

court did not expressly refuse to rule on qualified immunity. Id. Similarly, in

Wooten, we declined to extend Helton because the district court awaited

ruling on qualified immunity given the prospect of an amended complaint. Id.

at 406. In both cases, the district court did not expressly refuse to address

qualified immunity. Thus, since the first and second conditions in Mitchell

were not present, the district court orders were not immediately appealable.

This case falls outside of Helton and its progeny’s narrow holding. At

bottom, the district court did not expressly refuse to rule on Hardeman’s

qualified immunity defense. Nowhere in his three-page R&R did the

magistrate judge mention qualified immunity, cite a case explaining its

doctrinal contours, or analyze Hardeman’s arguments as to that defense. The

magistrate judge apportioned a paragraph at the end of the R&R, where he

generally concluded that “the allegations in the complaint along with all

references taken in favor of Plaintiffs—while undoubtedly thin—make out a

plausible claim for an equal protection violation under the Fourteenth

Amendment.” In determining whether a defendant is entitled to qualified

immunity, courts ask: “(1) was a statutory or constitutional right violated on

the facts alleged; and (2) did the defendant’s actions violate clearly

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established statutory or constitutional rights of which a reasonable person

would have known.” Tucker v. City of Shreveport, 998 F.3d 165, 172 (5th Cir.

2021). These steps may be evaluated in any order, and Hardeman is entitled

to qualified immunity if the Plaintiffs fail at either one. Pearson, 555 U.S. at

242. The magistrate judge in this case, at most, engaged in step one of the

qualified immunity analysis, concluding that Plaintiffs plausibly alleged a

Fourteenth Amendment equal protection claim. But the magistrate judge

never analyzed whether Plaintiffs rights were clearly established. Nor did he

affirmatively conclude that he was denying qualified immunity to Hardeman.

But Meza and Wooten do not fit, either. In Meza, the issue was “under

advisement.” 537 F.3d at 367. Similarly, in Wooten, the issue was pending

resolution based on the anticipated amended complaint. 964 F.3d at 406.

There is nothing in the record to that effect here. Instead, there is silence.

Typically, judicial guesswork is incompatible with our limited

jurisdiction, which requires a clear basis for our “power to act.” Kusay v.

United States, 62 F.3d 192, 194 (7th Cir. 1995). “The filing of a notice of

appeal is an event of jurisdictional significance” because “it confers

jurisdiction on the court of appeals and divests the district court of its control

over those aspects of the case involved in the appeal.” Griggs v. Provident

Consumer Disc. Co., 459 U.S. 56, 58 (1982). Thus, it remains “essential to

have clear rules that define who . . . possesses this power.” Kusay, 62 F.3d at

194. Clear guidance helps appellate courts in discerning jurisdiction.

Carswell v. Camp, 54 F.4th 307 (5th Cir. 2022), provides the necessary

guidance. There, we reviewed an interlocutory appeal from a district court’s

standard scheduling order that provided that pending motions to dismiss

based on qualified immunity were denied without prejudice. Id. at 309.

Defendants were instead required to raise qualified immunity in their answer.

Id. The district court further postponed ruling on qualified immunity until

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summary judgment. Id. at 310. Because qualified immunity is an immunity

from suit, we held that we had jurisdiction “because the district court refused

to rule on qualified immunity ‘at the earliest possible stage of litigation.’” Id.

at 310 (quoting Wicks v. Miss. State Emp. Serv., 41 F.3d 991, 994 (5th Cir.

1995)). We emphasized that qualified immunity need not “be made once-

and-for-all at the motion-to-dismiss stage.” Id. at 312. Rather, “where the

pleadings are insufficient to overcome” qualified immunity, “the district

court must grant the motion to dismiss without the benefit of pre-dismissal

discovery.” Id. Inversely true, “where the pleadings are sufficient to

overcome” qualified immunity, “the district court must deny the motion to

dismiss without the benefit of pre-dismissal discovery.” Id. Further, if

qualified immunity is denied because there is a need for clarification of the

facts, the district court may upon motion order limited discovery that is

“narrowly tailored to uncover only those facts needed to rule on the

immunity claim.” Id. at 311 (cleaned up). Whatever the circumstance, the

district court must rule on qualified immunity at the earliest possible stage.

Carswell is a product of Helton’s progeny that required an express

refusal to rule on qualified immunity early in stages of litigation. In Carswell,

the district court adopted a standard order that expressly postponed

adjudication of qualified immunity until the answer, and then the district

court refused to rule on the defense until summary judgment. Here, by

contrast, the district court did not expressly refuse to rule on the defense, so

Helton and Carswell are distinguishable. Moreover, the district court did not

expressly indicate that qualified immunity was unresolved, so Meza and

Wooten, too, are inapt. Thus, we are left in limbo without a case on point.

But we are not left without a principle to guide us out of the morass.

Carswell instructs that, when the motion-to-dismiss stage is the “earliest

possible stage in litigation” at which qualified immunity could be

adjudicated, a district court is required to rule on the motion. 54 F.4th at 313.

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Here, Hardeman raised qualified immunity in his Rule 12(b)(6) motion, so

the district court was required to rule on that motion. So while we are left

guessing about the district court’s intentions as to qualified immunity in this

case, we can conclude that, based on the earliest-possible-litigation principle

in Carswell, Hardeman was entitled to a ruling on his defense at this stage.

At bottom, the district court’s order denying Hardeman’s Rule

12(b)(6) motion had the practical effect of allowing litigation to continue

apace without timely adjudicating Hardeman’s clearly asserted qualified

immunity defense, which was properly presented before the court. Because

the district court permitted the litigation to proceed without first resolving

Hardeman’s defense, its order had the same denial effect as the refusals in

Helton and Carswell, even though qualified immunity was never expressly

decided here. Today, we treat this order as an implicit denial of qualified

immunity that is immediately appealable under the collateral-order doctrine. 1

We therefore hold that when a district court allows litigation to

proceed without adjudicating a qualified immunity defense at the earliest

possible stage of litigation, the resulting order is immediately appealable,

even if the district court does not expressly address qualified immunity in its

order. Our decision today is buttressed by the animating policy that,

_____________________

1

We are not alone in this conclusion. The Third and Tenth Circuits have both

determined that jurisdiction exists over comparable orders. See, e.g., Sebastiani v.

Westmoreland Cnty., No. 25-1106, 2026 WL 263481, at *1 (3d Cir. Feb. 2, 2026)

(unpublished) (“An ‘implicit denial’ of qualified immunity is sufficient to confer

interlocutory jurisdiction.” (citing In re Montgomery Cnty., 215 F.3d 367, 374 (3d Cir.

2000)); Ellis v. Salt Lake City Corp., 147 F.4th 1206, 1220 (10th Cir. 2025) (recognizing

that the appellate court “will usually have jurisdiction over the interlocutory appeal . . .

when a defendant ‘explicitly raised the defense’ of qualified immunity before the district

court but the district court fails to expressly decide the qualified immunity question,

because we consider the district court’s silence to ‘operate as an implicit denial’ of qualified

immunity.” (quoting Montoya v. Vigil, 898 F.3d 1056, 1063–64 (10th Cir. 2018)).

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“[u]nless the plaintiff’s allegations state a claim of violation of clearly

established law, a defendant pleading qualified immunity is entitled to

dismissal before the commencement of discovery.” Mitchell, 472 U.S. at 526

(emphasis added); Pearson, 555 U.S. at 231 (explaining that “the driving

force” behind qualified immunity is a “desire to ensure that insubstantial

claims against officials will be resolved prior to discovery” (cleaned up)).

IV

Because the district court did not address qualified immunity at the

earliest possible stage in the litigation, we VACATE the district court’s

order and REMAND for further proceedings consistent with this opinion.

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