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
WYNN, Circuit Judge,
concurring:
I concur fully in the thoughtful and well-reasoned majority opinion in these cases. I write separately only to underscore the prudence of the majority’s restraint, which promotes both “efficient judicial administration” and “the prerogatives of district court judges, who play a special role in managing ongoing litigation.” Mohawk Indus., Inc. v. Carpenter, — U.S. —, 130 S.Ct. 599, 605 , 175 L.Ed.2d 458 (2009).
With respect to the latter consideration, I feel compelled to reiterate the majority’s holding that our limited appellate role leaves us without jurisdiction at this stage of the litigation to consider the underlying merits of these appeals. Likewise, as noted in the majority opinion, “facts that might be material to the ultimate issue have [not yet] been conclusively identified” in these cases, which are on appeal from motions to dismiss. Ante at 223.
Accordingly, today’s opinion offers no guidance to the district court on the underlying merits of these matters. To do otherwise would, in my opinion, potentially usurp the role of the district court or risk overstepping our own. See United States *225 v. Fruehauf, 365 U.S. 146, 157 , 81 S.Ct. 547 , 5 L.Ed.2d 476 (1961) (“Such [advisory] opinions, such advance expressions of legal judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaceted situation embracing conflicting and demanding interests, we have consistently refused to give.”). Further, to the extent that my colleagues, in separate opinions, offer their views on the underlying merits of these cases, those opinions, “by their nature[,] express views that are not the law.” Arar v. Ashcroft, 585 F.3d 559 , 581 n. 14 (2d Cir.2009) (en banc).