"A district court's order on qualified immunity which determines only a question of 'evidence sufficiency' regarding plaintiff's claim is not appealable."
How later courts described this case
- "A district court's order on qualified immunity which determines only a question of 'evidence sufficiency' regarding plaintiff's claim is not appealable."
- "An order determining the existence or non-existence of a triable issue of fact — the sufficiency of the evidence — is not immediately appealable.”
Written by the judges who cited it.
The opinion
PER CURIAM:
This is an appeal of the denial of defendants’ motion for summary judgment on the grounds of qualified immunity. We exercise jurisdiction over such interlocutory appeals under the authority of Mitchell v. Forsyth, 472 U.S. 511, 530 , 105 S.Ct. 2806, 2817 , 86 L.Ed.2d 411 (1985). Under Mitchell , a district court’s denial of a defendant’s motion for summary judgment is immediately appealable if (1) the defendant is a public official asserting a qualified immunity defense, and (2) the issue appealed is whether the facts show a violation of “clearly established” law. Id. at 528 , 105 S.Ct. at 2816 .
Recently, however, the United States Supreme Court has made clear that only issues of law are reviewable under Mitchell. Johnson v. Jones, — U.S. —, —, 115 S.Ct. 2151, 2156 , 132 L.Ed.2d 238 (1995). A district court’s summary judgment order on qualified immunity which determines only a question of “evidence sufficiency” regarding plaintiff’s claim is not appealable. Id. The claim of immunity must be “conceptually distinct” from the merits of the plaintiffs claim; and the interlocutory appeal from its denial must be limited to the issue of whether the undisputed facts show a violation of “clearly established” law. Id.
Where, as in this case, a district court finds that there exists a genuine issue of material fact regarding the conduct claimed to violate clearly established law, there is no “final decision” and no interlocutory appellate jurisdiction under Mitchell to review the denial. Id. An order determining the existence or non-existence of a triable issue of fact — the sufficiency of the evidence — is not immediately appealable. Id. at —-—, 115 S.Ct. at 2157-58 . We, therefore, grant the plaintiffs motion to dismiss defendants’ interlocutory appeal.
We dismiss appellee’s cross-appeal because this court lacks pendent party appellate jurisdiction. Swint v. Chambers County Comm’n, — U.S. —, —, 115 S.Ct. 1203, 1211-12 , 131 L.Ed.2d 60 (1995).
The appeal and cross-appeal are DISMISSED for lack of jurisdiction.