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No. 94-1244. Argued November 7, 1995-Decided February 21, 1996

Respondent was fired as provisional managing officer of Pioneer Savings and Loan Association after petitioner, the federal official responsible for monitoring Pioneer's operations, recommended such action because respondent was under investigation for potential misconduct relating to the collapse of another financial institution. Respondent filed this suit, seeking, inter alia, damages for alleged constitutional wrongs under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388. In partially denying petitioner's motion to dismiss the Bivens claims, the District Court rejected petitioner's asserted defense of qualified immunity from suit. On appeal, the Ninth Circuit held that denial of qualified immunity is an immediately appealable "final" decision under 28 U. S. C. § 1291 and Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, but also stated, in dictum, that an official claiming qualified immunity is entitled to only one such pretrial appeal. Ultimately, the court affirmed the District Court's rejection of petitioner's qualified-immunity defense, based on the allegations made in respondent's complaint. On remand and after further proceedings, the District Court denied petitioner's motion for summary judgment, which again claimed qualified immunity. Petitioner's appeal from that denial, his second pretrial appeal based on a rejection of the qualified-immunity defense, was summarily dismissed by the Ninth Circuit "for lack of jurisdiction."

Held: A defendant's immediate appeal of an unfavorable qualifiedimmunity ruling on a motion to dismiss does not deprive the court of appeals of jurisdiction over a second appeal, also based on qualified immunity, immediately following denial of summary judgment. Pp. 305-314.

(a) The Ninth Circuit's one-interlocutory-appeal rule is rejected. In Mitchell v. Forsyth, 472 U. S. 511, 530, this Court held that a district court's denial of qualified immunity is an immediately appealable "final decision" within the meaning of 28 U. S. C. § 1291. Mitchell plainly contemplated that a government officer could raise the qualified-immunity defense at both the motion-to-dismiss and the summary-judgment stage, see 472 U. S., at 526, and clearly establishes that an order rejecting the defense at either stage is a "final" judgment subject to immediate appeal. An unsuccessful appeal from denial of a motion to dismiss cannot possibly render the later denial of a motion for summary judgment any



less "final" than it would be absent the prior decision. It follows that petitioner's appeal seeks review of a "final decision" within § 1291 and that its dismissal by the Court of Appeals was improper. The Ninth Circuit's proposition that no more than one judiciously timed appeal should be necessary to safeguard a defendant's right to qualified immunity is unsound, because the factors determinative of the qualifiedimmunity question will be different on summary judgment, where the court looks to the uncontested evidence, than on an earlier motion to dismiss, where it merely looks to the allegations of the complaint. pp.305-311.

(b) Respondent's additional arguments as to why dismissal was proper-(l) that the order denying qualified immunity could not be said to be "final" under Cohen since, even if it were to be reversed, petitioner would nonetheless be required to endure discovery and trial on other matters, and (2) that, under Johnson v. Jones, 515 U. S. 304, the denial of summary judgment is not immediately appealable because it rests on the determination that a genuine dispute exists as to material issues of fact-are also rejected. Pp.311-313.

Reversed and remanded.

SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 314.

Lenard G. Weiss argued the cause for petitioner. With him on the briefs was Christine A. Murphy.

Cornelia T. L. Pillard argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Bender, Barbara L. Herwig, and Richard A. Olderman.

Samuel T. Rees, by appointment of the Court, 515 U. S. 1101, argued the cause for respondent. With him on the brief was Michael J. White. *

* Louise H. Renne, Dennis Aftergut, G. Scott Emblidge, Ronald R. Ball, David J. Erwin, J. Kenneth Brown, Norman Herring, Edward J. Foley, Charles J. Williams, James K. Hahn, Katherine J. Hamilton, Gregory P. Priamos, Edward J. Cooper, Rene Auguste Chouteau, Mark G. Sellers, David B. Brearley, and Robert E. Murphy filed a brief for the City and County of San Francisco as amicus curiae urging reversal.

Full Text of Opinion


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