     Case: 13-40762        Document: 00512601472          Page: 1     Date Filed: 04/18/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                       Fifth Circuit

                                                                                         FILED
                                                                                   April 18, 2014
                                        No. 13-40762
                                                                                   Lyle W. Cayce
                                                                                        Clerk
MARY M. ZAPATA, Individually and as Administrator of the Estate of Jaime
J. Zapata; AMADOR ZAPATA, JR.; VICTOR AVILA, JR.,

                                                    Plaintiffs - Appellees
v.

KENNETH MELSON; WILLIAM D. NEWELL; HECTOR TARANGO;
DAVID VOTH; JUAN GELISTA; JERRY MILES; ANTHONY SALISBURY;
RAUL AGUILAR; LANNY BREUER; LUIS ALVAREZ,

                                                    Defendants - Appellants




                     Appeal from the United States District Court
                          for the Southern District of Texas


Before DENNIS and PRADO, Circuit Judges, and BROWN, District Judge. *
JAMES L. DENNIS, Circuit Judge:
      A number of federal officers appeal a district court’s order allowing
discovery and deferring a ruling on the defendants’ motion asserting qualified
official immunity. We reverse and remand this case to the district court for
that court’s consideration and ruling on the motion.




      *   District Judge of the Eastern District of Louisiana, sitting by designation.
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                               No. 13-40762
                              BACKGROUND
      We need not elaborate on the allegations underlying this case in detail
given its posture on appeal. The plaintiffs-appellees’ claims arise from the
death of Immigration and Customs Enforcement (ICE) Special Agent Jaime
Zapata and the serious injury to ICE Special Agent Victor Avila when the
agents were ambushed and shot by drug cartel members in Mexico using
weapons they allegedly obtained unlawfully in the United States.
      The plaintiffs filed this civil action for damages under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1999),
against ten federal officers, in their individual capacities, based on their
alleged roles in contributing to the Special Agents’ death and serious injury.
The plaintiffs allege that Zapata’s and Avila’s attackers obtained some of the
firearms that they used in the attack through “Operation Fast and Furious,”
during which FBI and ATF officers purposely allowed suspected arms
smugglers to purchase and “walk” illegal firearms into Mexico in a failed
attempt to track the firearms to Mexican drug-cartel leaders. The plaintiffs
allege that the ATF did not conduct proper surveillance of its targets or make
a meaningful attempt to track the firearms, creating a significant public-safety
concern. The plaintiffs further allege that, as a result of Operation Fast and
Furious, those guns, in turn, were used by cartel members in the February 15,
2011 attack on Special Agents Zapata and Avila. The defendants-appellants
are two sets of individual federal officers, some of whom allegedly developed
and carried out Operation Fast and Furious, and some of whom allegedly
compounded the danger to Zapata and Avila by ordering them to carry out an
operation in an unreasonably dangerous stretch of the Mexican highway
system with insufficient protection.
      The defendants-appellants moved to dismiss based on qualified
immunity under Federal Rule of Civil Procedure 12(b)(6), arguing that the

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                                No. 13-40762
plaintiffs failed to allege facts sufficient to support the inference of a
constitutional violation; failed to allege facts specifically addressing how each
of the individual federal officers caused a deprivation of the plaintiffs’
constitutional rights; and failed to state a claim for the deprivation of their
clearly established constitutional rights. The district court deferred ruling on
the defendants’ threshold qualified immunity defense, instead issuing an order
allowing the plaintiffs limited discovery on the issue of qualified immunity
after observing that whether the defendants are entitled to qualified immunity
is “certainly contested.” The district court did not give the parties further
guidance or limitations on the scope of discovery.
       The defendants-appellants timely appealed.                  See FED. R. APP. P.
4(a)(1)(B). They contend that the district court abused its discretion by failing
to rule on their immunity claim before permitting discovery pertaining to
qualified immunity. Additionally, they argue that the plaintiffs’ constitutional
claims fail as a matter of law and that the plaintiffs fail to articulate facts
which plausibly overcome the defendants’ qualified immunity defense. After
the defendants filed their notice of appeal, the plaintiffs filed an amended
complaint adding further factual and legal allegations, but they did so without
the benefit of the additional discovery ordered by the district court. 1
                                     DISCUSSION
       This court generally lacks jurisdiction to entertain interlocutory appeals
taken from district court discovery orders because such orders are nonfinal and
therefore not immediately appealable.              See, e.g., Mohawk Indus., Inc. v.



       1The plaintiffs suggest that this appeal is moot because they filed their amended
complaint after the defendants filed their notice of appeal. We are satisfied that this appeal
is not moot. The district court has not ruled on the defendants’ entitlement to qualified
immunity, the discovery order remains in place, and the defendants have not yet complied
with that order. A live controversy therefore remains.

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                              No. 13-40762
Carpenter, 558 U.S. 100, 112-13 (2009). However, we have repeatedly held
that a district court’s order that declines or refuses to rule on a motion to
dismiss based on a government officer’s defense of qualified immunity is an
immediately appealable order. Backe v. LeBlanc, 691 F.3d 645 (5th Cir. 2012);
Wicks v. Miss. State Emp’t Servs., 41 F.3d 991 (5th Cir. 1995); Helton v.
Clements, 787 F.2d 1016 (5th Cir. 1986). That is because such an order is
tantamount to an order denying the defendants qualified immunity, see Backe,
691 F.3d at 647-49—a class of order that is immediately appealable as a
collateral final order, see, e.g., Pearson v. Callahan, 555 U.S. 223, 232 (2009);
Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985); Backe, 691 F.3d at 647-49.
      “One of the most salient benefits of qualified immunity is protection from
pretrial discovery, which is costly, time-consuming, and intrusive.” Backe, 691
F.3d at 648 (citing Helton, 787 F.2d at 1017). But cf. Wicks, 41 F.3d at 994
(“[A] party asserting the defense of qualified immunity is not immune from all
discovery, only that which is avoidable or overly broad.” (citation and internal
quotation marks omitted)). “Consequently, this court has established a careful
procedure under which a district court may defer its qualified immunity ruling
if further factual development is necessary to ascertain the availability of that
defense.” Backe, 691 F.3d at 648. As we explained in Wicks, a district court
must first find “that the plaintiff’s pleadings assert facts which, if true, would
overcome the defense of qualified immunity.” Wicks, 41 F.3d at 994; see also
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (directing that a plaintiff must
“state a claim to relief that is plausible on its face”—excluding statements that
are “no more than conclusions” which are “not entitled to the assumption of
truth”) (internal quotation marks omitted).       “Thus, a plaintiff seeking to
overcome qualified immunity must plead specific facts that both allow the
court to draw the reasonable inference that the defendant is liable for the harm
he has alleged and that defeat a qualified immunity defense with equal

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                                 No. 13-40762
specificity.” Backe, 691 F.3d at 648. “After the district court finds a plaintiff
has so pleaded, if the court remains ‘unable to rule on the immunity defense
without further clarification of the facts,’ it may issue a discovery order
‘narrowly tailored to uncover only those facts needed to rule on the immunity
claim.’” Id. (quoting Lion Boulos v. Wilson, 834 F.2d 504, 507-08 (5th Cir.
1987)).
      “This court lacks jurisdiction to review interlocutory orders in qualified
immunity cases complying with these requirements.” Id. (citing Edwards v.
Cass Cnty., Tex., 919 F.2d 273, 275-76 (5th Cir. 1990)). “But we may review
the order under the collateral order doctrine when a district court fails to find
first that the plaintiff’s complaint overcomes a defendant’s qualified immunity
defense, Wicks, 41 F.3d at 994-95; when the court refuses to rule on a qualified
immunity defense, Helton, 787 F.2d at 1017; or when the court’s discovery
order exceeds the requisite ‘narrowly tailored’ scope, Lion Boulos, 834 F.2d at
507-08.” Backe, 691 F.3d at 648.
      The defendants argue that we have jurisdiction and that the district
court’s order should be vacated because the district court did not follow the
careful procedure set forth in Backe, Wicks, Helton, and Lion Boulos. We agree.
The district court did not explicitly rule on the defendants’ qualified-immunity
defense other than to note that the plaintiffs “set out the reasons [they] felt
that qualified immunity did not apply,” that the defendants “have not
contradicted those allegations,” and that accordingly, whether the defendants
are entitled to qualified immunity “is certainly contested.” The district court
failed to make an initial determination that the plaintiffs’ allegations, if true,
would defeat qualified immunity, falling short of the finding required by Backe
and Wicks; and unlike the court in Lion Boulos, the district court did not
identify any questions of fact it needed to resolve before it would be able to
determine whether the defendants were entitled to qualified immunity. Cf.,

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                                  No. 13-40762
e.g., Backe, 691 F.3d at 647-49; Wicks, 41 F.3d at 994; Lion Boulos, 834 F.2d at
506-08. 2 Because we conclude that the district court did not fulfill its duty
under either step of the framework just described, “for materially the same
reasons,” we both have jurisdiction to review the district court’s discovery order
and we must vacate it. Backe, 691 F.3d at 648. 3
       Accordingly, we VACATE the district court’s order and REMAND the
case to the district court with instructions to follow the procedures outlined in
Backe, Wicks, Helton, and Lion Boulos.
       VACATED and REMANDED with INSTRUCTIONS.




       2 The plaintiffs argue that the district court implicitly found that they had pleaded
facts sufficient to overcome the defendants’ immunity defense, citing the implied-findings
doctrine. This argument is without merit. The implied-findings doctrine permits us to affirm
a district court’s implied findings of fact if they are supported by the evidence. See Century
Marine Inc. v. United States, 153 F.3d 225, 230-31 (5th Cir. 1998); see Levy Gardens Partners
2007, L.P. v. Commonwealth Land Title Ins. Co., 706 F.3d 622, 631 (5th Cir. 2013); Consedine
v. Pers. Mgmt., Inc., 539 F. App’x 565, 575 & n.10 (5th Cir. 2013) (per curiam) (unpublished).
By contrast, a defendant’s entitlement to qualified immunity generally will not entail
findings of fact, see, e.g., Cantrell v. City of Murphy, 666 F.3d 911, 918 (5th Cir. 2012), and
extending the implied-findings doctrine to this context would render the “careful procedure”
set forth in Backe, Wicks, and Lion Boulos virtually meaningless, see, e.g., Backe, 691 F.3d at
648; Wicks, 41 F.3d at 994-95; Lion Boulos, 834 F.2d at 507.

       3  We decline the defendants’ invitation to rule on their entitlement to qualified
immunity for the first time on appeal. Among other considerations, we note that after the
defendants filed their notice of appeal, the plaintiffs filed an amended complaint elaborating
on their claims, which weighs in favor of allowing the district court to resolve this question
in the first instance. See, e.g., Backe, 691 F.3d at 649 (reversing and remanding to the district
court with instructions to follow the procedure set forth in Wicks, Lion Boulos, and others).
See generally Singleton v. Wulff, 428 U.S. 106, 120-21 (1976) (explaining that as a rule,
federal appellate courts do not resolve questions not passed on by the district court).
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