IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40762

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.

United States Court of Appeals

Fifth Circuit

FILED

April 18, 2014

Lyle W. Cayce

Clerk

 

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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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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. 

1 The 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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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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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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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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