stating that we have “jurisdiction over an appeal ... ‘if it challenge^] the materiality of factual issues,’ ” but “we lack jurisdiction if such an appeal ‘challenges the district court’s genuineness ruling — that genuine issues exist concerning material facts.’ ” (quoting Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 490 (5th Cir.2001))
How later courts described this case
- stating that we have “jurisdiction over an appeal ... ‘if it challenge^] the materiality of factual issues,’ ” but “we lack jurisdiction if such an appeal ‘challenges the district court’s genuineness ruling — that genuine issues exist concerning material facts.’ ” (quoting Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 490 (5th Cir.2001))
- distinguishing between the interlocutory appealability of immunity denials premised on ∗ Even if we assumed that our jurisdiction would permit us to determine whether CACI would be entitled to derivative sovereign immunity if the plaintiffs succeeded in proving their factual allegations, we would not, and do not, have jurisdiction over a claim that the plaintiffs have not presented enough evidence to prove their version of events. Id. at 221 . 3 “fact-based” versus “abstract” issues of law and noting that only the latter supply a proper foundation for immediate appeal
- noting that the Court of Appeals may consider and rule on “an interlocutory appeal of a denial of immunity ... of... an ostensibly fact-bound issue that may be resolved as a matter of law as whether facts that are undisputed or viewed in a particular light are material to the immunity calculus
- rejecting existence of an independent basis for jurisdiction by virtue of the defendants asserting the “law-of-war defense” under Coleman v. Tennessee, 97 U.S. 509, 24 L.Ed. 1118 (1878), and Dow v. Johnson, 100 U.S. 158, 25 L.Ed. 632 (1879); preemption by the “combatant activities” exception to the Federal Tort Claims Act, as recognized by Saleh v. Titan Corp., 580 F.3d 1 (D.C.Cir.2009); or absolute official immunity under Mangold v. Analytic Services, Inc., 77 F.3d 1442 (4th Cir.1996)
Written by the judges who cited it.
The opinion
DUNCAN, Circuit Judge,
concurring:
I respect the majority’s well-reasoned opinion in this case and therefore fully concur in its conclusion that we lack jurisdiction to hear this appeal. I write separately only to express my hope that the district courts in these consolidated appeals will give due consideration to the appellant’s immunity and preemption arguments — especially in light of the Supreme Court’s recent opinion in Filarsky v. Delia, — U.S. —, 132 S.Ct. 1657 , 182 L.Ed.2d 662 (2012), as discussed in Judge Niemeyer’s dissent — which are far from lacking in force.
Judge Agee has authorized me to indicate that he joins in this concurrence.