*

Honorable Arthur L. Alarcón, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by

designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 97-5347.

Michael MONIZ, Plaintiff-Appellee,

v.

CITY OF FORT LAUDERDALE, a Florida municipal corporation, Defendant,

Joseph Donisi, Thomas McCarthy, Bruce Roberts, both in their official capacities as Acting

Chief of Police and in their individual capacities, Defendants-Appellants.

July 9, 1998.

Appeal from the United States District Court for the Southern District of Florida. (No. 96-6405-CivDMM), Donald M. Middlebrooks, Judge.

Before EDMONDSON and BARKETT, Circuit Judges, and ALARCÓN*

, Senior Circuit Judge.

BARKETT, Circuit Judge:

Joseph Donisi, Thomas McCarthy, and Bruce Roberts (collectively "appellants"), all current

or former employees of the City of Ft. Lauderdale Police Department (the "Department"), appeal

from the denial of their motion for summary judgment based on qualified immunity in a reverse

discrimination suit filed against them by Ft. Lauderdale police officer Michael Moniz. Moniz is a

white male police officer with the Department. Donisi, McCarthy, and Roberts each served as

Acting Police Chief at various points during the relevant time period for purposes of this case.

Moniz's complaint derives from the Department's failure to promote him from the rank of

patrol officer to sergeant, despite his eligibility for promotion pursuant to the Department's "rule of

five scores" policy, at various points during the time period from January 1992 through January
 1

Pursuant to a collective bargaining agreement between the City of Ft. Lauderdale and the

Fraternal Order of Police, Lodge No. 31, eligibility for promotion to the rank of sergeant is

limited to those candidates who attain one of the top five scores on the Department's eligibility

list—the "rule of five scores." In order to be ranked on the eligibility list, officers must achieve a

minimum passing score of 70% on a competitive oral and written examination. Candidates who

achieve the minimum score can then have their scores increased based on such factors as

residency, past service credits, academic credits, and veterans' preference points. Following

these adjustments, candidates are ranked according to their adjusted examination scores.

Upon the creation of a promotional vacancy which the City elects to fill, the

City's personnel director certifies a list of the candidates with the top five scores on the

eligibility list and passes this certified list on to the Police Chief. The Police Chief then

exercises near complete discretion in recommending the best qualified candidate from the

certified list, irrespective of numerical score, to the City Manager for promotion. Those

candidates on the certified list who are not promoted remain eligible for future vacancies

until the list expires, at which point all candidates are re-tested so that a new eligibility

list may be compiled. A new eligibility list is compiled every two years. 

 2The parties appear to agree that the sole record evidence of discriminatory intent consists of

Moniz's unsworn declaration asserting that Donisi told Moniz that he had promoted two of the

top five scoring African-American candidates because he wanted to increase the number of

African-American sergeants. This statement, considered in light of the Department's multi-tiered

selection process, shows that Donisi took race into account in choosing the best qualified

candidate for each promotion. It does not, however, indicate that Donisi selected candidates for

promotion based on race to the exclusion of all other factors. Thus, we are not confronted with,

2

1996.1 During this period, Moniz was among the top five scoring candidates on the Department's

eligibility list on nine occasions when the City elected to fill a promotional vacancy. On each of

those occasions, however, exercising his discretion to select the best qualified candidate among

those officers with the top five scores, the Acting Police Chief at the time selected a candidate other

than Moniz. Three of the candidates selected for promotion were African-American; the six

remaining candidates who were promoted while Moniz was included on the certified list were white.

Moniz contends that Acting Police Chief Donisi informed him that in filling two of the promotional

vacancies he had selected African-American officers from the list of candidates with the top five

scores in order to increase the number of African-American sergeants.2

 Moniz subsequently filed
and need not here address, the question whether appellants would be entitled to qualified

immunity had they decided to promote the African-American candidates solely on account of

race. 

3

suit against the City of Ft. Lauderdale and against Donisi, McCarthy, and Roberts, in both their

individual and official capacities, alleging violations of Title VII, the Florida Civil Rights Act, and

42 U.S.C. §§ 1983 and 1985(3). Only the three counts of Moniz's complaint asserting a § 1983

claim are relevant for purposes of this appeal. In those counts, Moniz alleged that appellants were

responsible for promoting the three African-American officers, and that the race-based decisions to

promote the African-American officers instead of Moniz violated Moniz's right to equal protection

under the Fourteenth Amendment. Appellants in their individual capacities asserted the affirmative

defense of qualified immunity and subsequently moved for summary judgment on that basis. The

district court summarily denied appellants' motion, stating only that:

The Defendants assert[ ] various reasons as to why Summary Judgment should be

entered in [their] favor and that there exists no genuine issue of material fact.

Without elaborating specifically, the Court finds that there exist genuine issues of

material fact which preclude the entry of Judgment as a matter of law.

Finding that appellants in their individual capacities are clearly entitled to summary judgment on

their claims of qualified immunity, we reverse.

DISCUSSION

 As an initial matter, we find no merit to Moniz's jurisdictional challenge to this appeal.

Moniz argues that the district court's order denying summary judgment on qualified immunity

grounds is not appealable interlocutorily under Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132

L.Ed.2d 238 (1995), because the district court's sole reason for denying summary judgment was the

existence of genuine issues of material fact. It is true that the denial of qualified immunity at the
4

summary judgment stage is not appealable interlocutorily when the appeal involves only a challenge

to the district court's determination that material facts identified in the district court's order are

genuinely in dispute. Such a challenge must await final disposition of the case. See Crawford-El

v. Britton, --- U.S. ----, ----, 118 S.Ct. 1584, 1595, 140 L.Ed.2d 759 (1998) (remarking that the Court

has "rejected the argument that the policies behind the immunity defense justify interlocutory

appeals on questions of evidentiary sufficiency"); Johnson, 515 U.S. at 307-08, 115 S.Ct. 2151

(denial of summary judgment on qualified immunity grounds not immediately appealable where

defendants' sole claim on appeal was that the record contained no evidence that defendants had

participated in or been present during plaintiff's beating).

 However, where, as here, the appeal is based on an assertion that, even on the plaintiff's

version of the facts, the defendants are entitled to qualified immunity as a matter of law, we have

jurisdiction to review the denial of summary judgment interlocutorily. See Behrens v. Pelletier, 516

U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). The mere fact that the district court simply

asserted that it based the denial of summary judgment on the existence of genuine issues of material

fact does not render the summary judgment order automatically unappealable. Id. at 312-13, 116

S.Ct. 834. Rather, such a denial remains immediately appealable to the extent that it turns on "an

"abstract issu[e] of law' relating to qualified immunity—typically, the issue whether the federal right

allegedly infringed was "clearly established.' " See id. at 313, 116 S.Ct. 834 (internal citations

omitted); Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). This

is so notwithstanding the district court's failure to identify the factual basis for its legal

determination. See Behrens, 516 U.S. at 313, 116 S.Ct. 834. As Johnson recognizes, where the

district court has not set forth the facts on which the denial of summary judgment is based, "[the]
 3

Appellants also raise a jurisdictional issue on appeal, arguing that Moniz lacks standing

under Article III of the Constitution to challenge appellants' promotion decisions in federal court

because he cannot show any "injury in fact." Although the district court's rejection of appellants'

qualified immunity defense "is a final decision under the collateral order doctrine over which

this Court has jurisdiction pursuant to 28 U.S.C. § 1291," Harris v. Board of Educ. of the City of

Atlanta, 105 F.3d 591, 594 (11th Cir.1997), the question of Moniz's standing to challenge

appellants' promotion decisions is not, see Crymes v. DeKalb County, Ga., 923 F.2d 1482, 1484

(11th Cir.1991) (observing that "the district court's denial of appellants' motion to dismiss the

complaint on ripeness grounds ... is not in itself an immediately appealable order"). In Swint v.

Chambers County Comm'n, 514 U.S. 35, 50-51, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995), the

Supreme Court left open the possibility that it might "be proper for a court of appeals with

jurisdiction over one ruling to review, conjunctively, related rulings that are not themselves

independently appealable" when, for example, the issues involved are "inextricably intertwined,"

or when review of the related ruling is "necessary to ensure meaningful review of the [issue over

which the court has jurisdiction]." See also Vista Community Servs. v. Dean, 107 F.3d 840, 843

n. 4 (11th Cir.1997). Because we may resolve the qualified immunity issue in this case without

reaching the merits of appellants' challenge to Moniz's standing, however, we conclude that the

latter issue does not come under either of these categories and thus does not fall within our

pendent appellate jurisdiction under Swint. 

5

court of appeals may have to undertake a cumbersome review of the record to determine what facts

the district court, in the light most favorable to the nonmoving party, likely assumed" in order to

determine whether, on that set of facts, a violation of clearly established law occurred. Johnson, 515

U.S. at 319, 115 S.Ct. 2151; see also Behrens, 516 U.S. at 313, 116 S.Ct. 834.

 In this case, notwithstanding that the district court's order recites that "there exist genuine

issues of material fact which preclude the entry of Judgment as a matter of law," we have

jurisdiction because the issue presented on appeal is the purely legal question whether, even on the

facts construed in the light most favorable to Moniz, appellants are entitled to qualified immunity

as a matter of law.3

 More specifically, the question on appeal is whether appellants should

reasonably have known, based on prior clearly established law, that their consideration of race as

a factor in selecting officers for promotion among the top five scoring candidates on the
 4

In analyzing a defense of qualified immunity, we first consider whether "the defendant

government official [has proven] that he was acting within the scope of his discretionary

authority when the alleged wrongful act occurred." Evans v. Hightower, 117 F.3d 1318, 1320

(11th Cir.1997). If the defendant has met this burden, "the plaintiff must then demonstrate that

the defendant violated clearly established law based upon objective standards." Id. Because it is

undisputed that appellants were acting within the scope of their discretionary authority, we

consider only the second part of the qualified immunity analysis here. 

 5

In construing the facts in the light most favorable to Moniz, we have assumed, without

examining or deciding, that each appellant was in a position to deny his promotion. 

6

Department's eligibility list violated Moniz's right to equal protection.4

 As the Supreme Court has

explained, to be clearly established, "[t]he contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates that right. This is not to say that

an official action is protected by qualified immunity unless the very action in question has

previously been held unlawful ..., but it is to say that in the light of pre-existing law the unlawfulness

must be apparent." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523

(1987) (internal citation omitted).

 We conclude that appellants could not have been on notice that the promotion decisions for

which Moniz holds them responsible5

 would violate his rights under clearly established law. To the

contrary, a reasonable government official in appellants' position could have believed that the

actions alleged in Moniz's complaint were entirely consistent with clearly established law.

Since 1980, the City of Ft. Lauderdale has been operating pursuant to a consent decree that

was entered in United States v. City of Fort Lauderdale, S.D. Fla. Case No. 80-6289-CIV-AHL. The

consent decree requires the City to adopt the goal of selecting African-American and women

candidates for promotion in the police and fire departments in proportion to their representation in

the pool of those individuals who have successfully passed the applicable promotional examination.
 6

Although appellants stated at oral argument that the City was required to adopt the

above-referenced affirmative action plan pursuant to the Consent Decree, the details of the plan

are unavailable as it was not included in the record on appeal. 

7

Specifically, the consent decree includes the following provisions concerning the promotion of

African-American and female police officers and fire-fighters:

The City shall adopt and seek to achieve the goal of promoting blacks and women in the

police and fire departments in proportion to their representation in the pool of those

individuals who have successfully passed the applicable promotional examination if one is

required by the City. However, if the proportion of blacks or women passing any such

examination is less than 80% of the proportion of whites or men passing that examination,

or, if no promotional examination is required, then blacks and women shall be promoted in

proportion to their numbers among the eligible applicants who have taken that examination.

The City's compliance with the requirements of this paragraph shall be measured by its

compliance with these promotional goals averaged over two year periods, beginning with

the entry of this Consent Decree, or upon motion by any party for dissolution of this Consent

Decree.

In no event shall the City be required to hire or promote any person who is not qualified, or

to displace any incumbent employee, or to hire or promote any unneeded employees, in order

to meet a goal set out in this Decree.

The City has also been operating pursuant to a federally mandated affirmative action plan since

1980.6

 Thus, accepting as true Moniz's assertion that appellant Donisi informed him that he had

recommended two of the top five scoring African-American candidates for promotion in order to

increase the number of African-American sergeants, a justification consistent with the promotional

goal articulated in the consent decree, appellants are entitled to qualified immunity unless Moniz

can demonstrate that appellants should have known, based on clearly established law as of 1993 and

1995, the years in which the challenged promotions were awarded, that their use of race as a factor

in making promotions consistent with the consent decree was unconstitutional under the Equal

Protection Clause of the Fourteenth Amendment. This Moniz cannot do.
8

It is undisputed that both the consent decree and the affirmative action plan remain in effect

to date. Moreover, there is no suggestion in the record that the constitutionality of the consent

decree has been ever been challenged in court, and Moniz raises no such challenge in his complaint.

We are aware of no legal authority—and Moniz points to none—that would have put appellants on

notice that their consideration of race as a factor in making promotion decisions consistent with a

consent decree the validity of which remained unchallenged would violate Moniz's equal protection

rights. To the contrary, as recently as 1991, this court upheld the grant of summary judgment on

qualified immunity grounds to various individual members of a City Personnel Board, who had been

named as defendants in a reverse discrimination suit based on their role in recommending women

and minority candidates for promotion from deputy sheriff to sergeant pursuant to a court-approved

consent decree. See Wilson v. Bailey, 934 F.2d 301, 304 n. 1 (11th Cir.1991). In affirming the

district court's qualified immunity ruling, the court remarked only that "[i]t is undisputed that the

Personnel Board members acted pursuant to a consent decree approved by a district judge. Thus,

summary judgment was warranted." Id.

In light of the foregoing, we cannot say that a reasonable government official in appellants'

position should have known that the use of race as a factor in selecting candidates for promotion in

the manner that the challenged promotion decisions were made in this case would be

unconstitutional. We conclude, therefore, that, having violated no clearly established law, appellants

are entitled to qualified immunity as a matter of law. Accordingly, we reverse the order of the

district court denying appellants' motion for summary judgment on qualified immunity grounds and

remand for further proceedings consistent herewith.

REVERSED and REMANDED.
9