# Tony Velasquez v. John Senko > Court of Appeals for the Ninth Circuit · April 6, 1987 · 813 F.2d 1509 URL: https://www.frixlaw.com/law-library/cases/9475935 ## Case - **Full name:** Tony VELASQUEZ, Et Al., Plaintiffs-Appellees, v. John SENKO, Et Al., Defendants-Appellants - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** April 6, 1987 - **Citations:** 813 F.2d 1509; 1987 U.S. App. LEXIS 4388 - **Precedential status:** Published - **Opinion:** Opinion of the court by Kozinski - **Judges:** Nelson, Hall, Kozinski - **Cited by:** 28 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9475935 ## Opinion text KOZINSKI, Circuit Judge: I. Plaintiffs allege that agents of the Immigration & Naturalization Service and the Border Patrol violated their constitutional rights in conducting raids on Hispanic neighborhoods and establishments without reasonable cause or proper warrants. Appellants, four federal officials sued in their individual capacities, moved to dismiss and for summary judgment. They claimed they had no personal connection with the raids in question and were therefore entitled to “qualified immunity” from suit. The district court denied both motion, 643 F.Supp. 1172 . The court found that appellants failed to address the pertinent issue for a claim of qualified immunity: whether the law they were accused of violating was clearly established. Noting that the qualified immunity issue was not properly raised and that discovery had not yet commenced, the court indicated that the denial of summary judgment was without prejudice. Defendants appeal the order denying these motions. *1511 II. We must first determine whether the district court’s order is appealable. In most instances, an appeal lies only from a final judgment of the district court. 28 U.S.C. § 1291 (1982). In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949), however, the Court excepted certain collateral orders from the final judgment rule. Under Cohen , a district court’s decision is appealable if it “finally determine[s] claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” 337 U.S. at 546 , 69 S.Ct. at 1225 . In Mitchell v. Forsyth, 472 U.S. 511 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985), the Court held that the denial of a motion to dismiss or for summary judgment based on qualified immunity is a collateral order, appealable under Cohen . The concept of “qualified immunity” for federal officials stems from Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982), which “recognized an entitlement not to stand trial or face the other burdens of litigation, conditioned on the essentially legal question whether the conduct of which the plaintiff complains violated clearly established law.” Mitchell, 472 U.S. at 526 , 105 S.Ct. at 2816 . The Court determined that a denial of qualified immunity is immediately appealable because it conclusively determines the right not to stand trial and because it involves a legal issue “conceptually distinct” from the merits of plaintiff’s claim. Id. The Court emphasized, however, that the issue immediately appealable was the “purely legal” one of "whether the facts alleged ... support a claim of violation of clearly established law.” 472 U.S. at 528 n. 9, 105 S.Ct. at 2816 n. 9. As Mitchell notes, the Cohen requirement that the issue be separable from the merits is thereby met: The appellate court “need not consider the correctness of the plaintiffs version of the facts, nor even determine whether the plaintiff’s allegations actually state a claim. All it need determine is a question of law....” 472 U.S. at 528 , 105 S.Ct. at 2816 . 1 Appellants here claim they were entitled to summary judgment 2 because “they were not present” during the operations in question and did not participate in the planning or direction of the raids. This claim is much different from that held to be appealable in Mitchell . Nowhere do appellants claim that the law, they are accused of violating was not clearly established. Instead, they present a disputed factual issue, inextricably bound up in the underlying claim: whether the defendants were present at the raids and the extent to which they participated in or directed the operations. An ordinary summary judgment motion of this type is not automatically transformed into a qualified immunity claim merely because defendants are federal officials. The appeal does not present a purely legal issue, separable from the merits, as Mitchell requires. 3 The appeal is therefore DISMISSED. . See also Mitchell, 472 U.S. at 530 , 105 S.Ct. at 2817 (district court's denial of a claim of qualified immunity is appealable "to the extent that it turns on an issue of law"); id. at 529 n. 10, 105 S.Ct. at 2817 n. 10 (qualified immunity claim meets Cohen "separate from the merits" test because it involves only "legal determination that a given proposition of law was not clearly established"); id. (qualified immunity ruling is a "legal issue that can be decided with reference only to undisputed facts and in isolation from the remaining issues of the case”). . The motion to dismiss was based not on qualified immunity but on failure to state a claim under Fed.R.Civ.P. 8, failure to state a claim based on respondeat superior and failure to make a timely motion for class certification. . Because such a case is not before this court, we need not decide whether denial of a summary judgment motion based on defendants’ non-involvement made after discovery is complete would present a properly appealable legal issue. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9475935. Public record. Not legal advice.