Case: 24-10369 Document: 57-1 Page: 1 Date Filed: 07/03/2025
United States Court of Appeals for the Fifth Circuit United States Court of Appeals ____________ Fifth Circuit
FILED No. 24-10369 July 3, 2025 ____________ Lyle W. Cayce Clerk Guadalupe Frias; Shannon McKinnon,
Plaintiffs—Appellees,
versus
Genaro Hernandez,
Defendant—Appellant. ______________________________
Appeal from the United States District Court for the Northern District of Texas USDC No. 3:23-CV-550 ______________________________
Before Jones, Oldham, Circuit Judges and Hendrix, District Judge.* Edith H. Jones, Circuit Judge: Genaro Hernandez is a Dallas Police Department (“DPD”) detective by day and private employee of the Stainback Organization by night. In August 2019, a shooting occurred outside the Stainback Organization’s neighbor, a Dallas bar called The Green Elephant. Detective Hernandez allegedly inserted himself into the subsequent criminal investigation at the behest of his private employer to pursue a slew of bogus charges against
_____________________ * District Judge of the Northern District of Texas, sitting by designation. Case: 24-10369 Document: 57-1 Page: 2 Date Filed: 07/03/2025
No. 24-10369
plaintiff-appellees, the owner of and a hired security guard for The Green Elephant, neither of whom had anything to do with the shooting. Even if his questionable conduct stemmed from an ulterior motive to benefit the Stainback Organization, Hernandez’s acts fell within the heartland of his role as a detective. Because Texas law affords state actors broad immunity for acts objectively within the scope of their employment, regardless of their subjective intent, Hernandez is immune from suit. The district court’s judgment denying dismissal of the plaintiffs’ state-law claims must be REVERSED with instructions to Dismiss, and the case is REMANDED for further proceedings as to the plaintiffs’ remaining federal claim. I. Plaintiff Shannon McKinnon owns The Green Elephant, a bar in Dallas. Plaintiff Guadalupe Frias is a Kaufman County constable who provides private security for The Green Elephant. In August 2019, a shooting occurred outside The Green Elephant. Plaintiffs called the police in the minutes after the shooting. Waiting for officers to arrive, plaintiffs searched the parking lot of The Green Elephant for evidence and picked up shell casings they had found. Police did not come to The Green Elephant until approximately one week later, when an officer took custody of the shell casings. The plaintiffs’ complaint alleges that, in the days following the shooting, Detective Genaro Hernandez of the DPD was “somehow” assigned to “follow up” on an investigation of criminal mischief related to damage to the Stainback Organization’s property. Hernandez’s method of assignment to the case was “abnormal,” because he was neither dispatched to respond to the shooting nor assigned to the case by a supervisor. Nevertheless, Hernandez and another detective retrieved surveillance
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footage from a Stainback representative showing that the plaintiffs collected shell casings the night of the shooting. Hernandez took the footage to the DPD Special Investigation Unit (“SIU”), which handles incidents related to firearms. After reviewing the footage and related information, SIU investigators “found no criminal offense pertaining to [p]laintiffs” and “did not file any charges related to the shell casings[.]” Despite the SIU’s findings, the complaint alleges that Hernandez circumvented the DPD’s charging process and brought the case directly to the Dallas County District Attorney’s Office for prosecution. Hernandez did so even though he “knew that the SIU would not pursue charges” and that no evidence linked plaintiffs to the shooting. To that end, the complaint alleges that Hernandez submitted “reports and other writings” containing false or misleading statements and omissions to the DPD and Dallas County District Attorney. The reports failed to mention (1) the SIU investigation that found plaintiffs had committed no crime and recommended no charges, (2) plaintiffs’ innocence of the shooting itself, and (3) Hernandez’s conflict of interest arising from his employment relationship with the Stainback Organization. As a result of the reports, McKinnon and Frias were indicted for the felony offense of tampering with evidence in June 2021. In March 2022, Frias’s case proceeded to trial. At trial, Hernandez’s “ulterior motives” for investigating and pursuing charges against the plaintiffs came to light. While Hernandez worked during the week as a detective in the property crimes unit of the DPD, he spent his weekends working for the Stainback Organization. He was first told of the shooting by an individual associated with the Stainback Organization and “secretly inserted himself into the investigation.” Hernandez sought to keep this connection secret and never informed the DPD of his employment relationship with the Stainback Organization. Hernandez “simply had another objective in mind” when investigating plaintiffs, ostensibly to benefit
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the Stainback Organization, which wanted “to be rid of” its neighbor, The Green Elephant. When Hernandez’s relationship with the Stainback Organization was disclosed during Frias’s trial, the District Attorney’s Office dropped the case “in the interest of justice.” Charges were also dropped against McKinnon. Plaintiffs then sued Hernandez. Their complaint alleges federal claims under 42 U.S.C. § 1983 for false arrest and malicious prosecution and state-law claims for malicious prosecution, false imprisonment, and civil conspiracy. Hernandez moved to dismiss all the claims against him. The district court granted Hernandez’s motion to dismiss the federal malicious- prosecution claim based on qualified immunity. But the court denied his motion to dismiss the federal false-arrest claim, which remains pending. The court denied his motion to dismiss the three state-law claims. Hernandez now appeals, arguing only that the district court erred in failing to dismiss the plaintiffs’ state-law claims because he is entitled to governmental immunity under the Texas Tort Claims Act. II. The denial of state-law immunity in cases permissibly brought in federal court “is a collateral order, which this court has jurisdiction to review.” Smith v. Heap, 31 F.4th 905, 910 (5th Cir. 2022). “[A]n order denying [] immunity under state law is immediately appealable as a ‘final decision,’ provided that ‘the state’s doctrine of [] immunity . . . provides a true immunity from suit and not a simple defense to liability.’” Cantu v. Rocha, 77 F.3d 795, 803 (5th Cir. 1996) (quoting Sorey v. Kellett, 849 F.2d 960, 962 (5th Cir. 1988)). When applicable, § 101.106(f) of the Texas Tort Claims Act renders officers “immune from suit.” McFadden v. Olesky, 517 S.W.3d 287, 294–95 (Tex. App.—Austin 2017, pet. denied). The denial of state-law immunity in this case is therefore immediately appealable under the
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collateral-order doctrine. See Wilkerson v. Univ. of N. Tex. ex rel. Bd. of Regents, 878 F.3d 147, 154 (5th Cir. 2017). The district court’s partial denial of the motion to dismiss is reviewed “de novo, accepting all well-pled facts as true and viewed in the light most favorable to the plaintiffs.” Espinal v. City of Houston, 96 F.4th 741, 745 (5th Cir. 2024) (citation omitted). III. Section 101.106(f) of the Texas Tort Claims Act “affords state employees governmental immunity.” Wilkerson, 878 F.3d at 159. “When it applies, § 101.106(f) ‘mandates[] plaintiffs to pursue lawsuits against governmental units rather than their employees,’ and entitles the employee ‘to dismissal’ of the relevant tort claim.” Id. (internal citations omitted). The section states:
If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed. Tex. Civ. Prac. & Rem. Code § 101.106(f). “More succinctly, a defendant is entitled to dismissal upon proof that the plaintiff’s suit is (1) based on conduct within the scope of the defendant’s employment with a governmental unit and (2) could have been brought against the governmental unit under the [Texas] Tort Claims Act.” Laverie v. Wetherbe, 517 S.W.3d 748, 752 (Tex. 2017) (citations omitted). This court may dismiss claims on
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the pleadings when the facts alleged establish that the conduct at issue fell within the scope of employment. See Heap, 31 F.4th at 913–14. We hold, as further explained, that Hernandez’s conduct was “within the general scope of [his] employment.” Wilkerson, 878 F.3d at 161. And it is undisputed that plaintiffs’ tort claims for malicious prosecution, false imprisonment, and conspiracy “could have been brought” against the City of Dallas. Franka v. Velasquez, 332 S.W.3d 367, 381 (Tex. 2011). The Act defines “scope of employment” as “the performance for a governmental unit of the duties of an employee’s office or employment and includes being in or about the performance of a task lawfully assigned to an employee by competent authority.” Tex. Civ. Prac. & Rem. Code § 101.001(5). The Texas Supreme Court’s decision in Laverie erected the signposts applicable here. Whether an individual acted within the scope of employment “calls for an objective assessment of whether the employee was doing her job when she committed an alleged tort, not her state of mind when she was doing it.” Laverie, 517 S.W.3d at 753 (citing Tex. Civ. Prac. & Rem. Code § 101.001(5)). The inquiry asks only whether “there [is] a connection between the employee’s job duties and the alleged tortious conduct[.]” Id. “So long as it falls within the duties assigned, an employee’s conduct is within the scope of employment, even if done in part to serve the purposes of the employee or a third person.” Id. (quoting Anderson v. Bessman, 365 S.W.3d 119, 125–26 (Tex. App.—Houston [1st Dist.] 2011, no pet.)). Even if a private employer “direct[s] the actions” of an employee and the employee “acts consistent with his private employer’s directions . . . ‘co- existing motivations do not remove an employee’s actions from the scope of his [governmental] employment so long as the conduct serves a purpose of the [governmental] employer.’” Seward v. Santander, __ S.W.3d __, No.
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23-0704, 2025 WL 1350133, at *9 (Tex. May 9, 2025) (citations omitted) (alterations in original). Finally, “references to intent and purpose simply reflect that an employee whose conduct is unrelated to his job, and therefore objectively outside the scope of his employment, is engaging in conduct for his own reasons.” Laverie, 517 S.W.3d at 754. “This is not tantamount to a threshold requirement that government-employee defendants conclusively prove their subjective intent to establish they acted in the scope of their employment.” Id.; see also Garza v. Harrison, 574 S.W.3d 389, 400 (Tex. 2019) (“Conduct falls outside the scope of employment when it occurs ‘within an independent course of conduct not intended by the employee to serve any purpose of the employer.’”(emphasis in original) (citations omitted)). But “the employee’s state of mind, motives and competency are irrelevant[.]” Garza, 574 S.W.3d at 401.1 “[Hernandez’s] personal motivations . . . ultimately do not change h[is] job responsibilities[.]” Laverie, 517 S.W.3d at 755. Hernandez acted within the scope of his employment because there is a connection between the duties of his job and his allegedly tortious conduct. Hernandez’s assignment to the case and investigation of the plaintiffs fell within the scope of his employment, even if he violated a swath of internal DPD policies by inserting himself into the investigation, concealing his conflict of interest, and acting to benefit his private employer. Numerous Texas authorities confirm that Hernandez’s “general conduct was within the scope of
_____________________ 1 This court has similarly employed a broad standard under the statute. “The employee’s acts must be of the same general nature as the conduct authorized or incidental to the conduct authorized to be within the scope of employment.” Wilkerson, 878 F.3d at 159 (emphasis in original) (citations omitted). And the “issue is not whether the government employee had authority to commit the allegedly tortious act,” or violated internal policies or procedures, but whether he was “discharging the duties generally assigned to [him].” Id. at 161 (citation omitted).
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employment,” even if the “specific act[s]” alleged in the complaint were “somehow wrongful.” Fink v. Anderson, 477 S.W.3d 460, 470 (Tex. App.— Houston [1st Dist.] 2015, no pet.); see also Alexander v. Walker, 435 S.W.3d 789, 792 (Tex. 2014) (in evaluating whether officers sued for assault were acting within scope of employment, generally considering act of securing an arrest instead of tort-based act of assaulting arrestee). More specifically, “an officer’s scope of employment includes . . . investigating [and] arresting[.]” Rivera v. Garcia, 589 S.W.3d 242, 249 (Tex. App.—San Antonio 2019, no pet.); see also Ogg v. Dillard’s Inc., 239 S.W.3d 409, 419 (Tex. App.—Dallas 2007, pet. denied); Harris County v. Gibbons, 150 S.W.3d 877, 883 n.7 (Tex. App.—Houston [14th Dist.] 2004, no pet.). Hernandez was assigned to and did investigate criminal activity, and he took a case to the District Attorney’s Office to pursue charges for tampering with evidence. Tex. Penal Code § 37.09. Indeed, the District Attorney’s Office brought charges against the plaintiffs and took the case to trial. When an officer enforces “general laws,” he is performing a public duty and acting within the scope of his employment. Garza, 574 S.W.3d at 403. Why Hernandez took certain actions during the investigation implicates his subjective intent, an inquiry that Texas law explicitly bars. See Laverie, 517 S.W.3d at 755. Even if the Stainback Organization “directed [Hernandez’s] actions,” his conduct still fell within the scope of his employment because it “serve[d] a purpose” of the DPD. Seward, __ S.W.3d at __, 2025 WL at *9. Plaintiffs’ arguments to the contrary misapply the law and precedents. They contend that Hernandez was never “lawfully assigned to do anything with respect to this matter” because he violated the DPD’s case assignment policy and therefore could not have acted within the scope of his employment. This argument erroneously narrows the statutory “scope of employment,” which includes “being in or about the performance of a task
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lawfully assigned to an employee.” Tex. Civ. Prac. & Rem. Code § 101.001(5) (emphasis added). The issue is not whether Hernandez was properly assigned to investigate this matter, but whether his acts were “of the same general nature as the conduct authorized or incidental to the conduct authorized” by his employment. Laverie, 517 S.W.3d at 753 (citation omitted). Even if Hernandez’s involvement in the plaintiffs’ criminal investigation, from his assignment to his charging recommendation, violated DPD internal policy, “the fact remains that [plaintiffs were] being investigated for a crime[.]” Ogg, 239 S.W.3d at 419; see also Gibbons, 150 S.W.3d at 883, 883 n.7 (off-duty officer acted within the scope of his employment when he initiated a license check because it constituted an “investigation” and a “private individual would not have had the ability to run a license check”). Conduct incidental to such an investigation is related to Hernandez’s employment as a detective. See Rivera, 589 S.W.3d at 249. In fact, plaintiffs’ injuries stem from Hernandez’s misuse of his power as a detective in the property crimes division to bring the weight of the District Attorney’s Office to bear against them. Hernandez could not facilitate such a prosecution “while acting ultra vires and in a personal capacity.” Wilkerson, 878 F.3d at 160. Second, Hernandez acted within the scope of his employment when he allegedly provided misleading information in affidavits and reports relevant to the charging decisions of the DPD and District Attorney’s Office. Hernandez did not detail the SIU’s investigation, misrepresented the plaintiffs’ involvement in the shooting, and failed to disclose his conflict of interest. But preparing reports and affidavits for charging decisions is directly related to Hernandez’s duty to investigate and prosecute crime. See McFadden, 517 S.W.3d at 297 (officers acted within the scope of their employment when preparing an arrest affidavit with false information because they “were acting in their capacities as . . . officers and discharging
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the duties assigned to them”); Donohue v. Butts, 516 S.W.3d 578, 582 (Tex. App—San Antonio 2017, no pet.) (“falsif[ying] documents in furtherance of [a] prosecution . . . [is] conduct within the general scope of [an officer’s] employment”). The plaintiffs also contend, and the district court held, that when “there is no immediate crime and the off-duty officer is protecting a private employer’s property or otherwise enforcing a private employer’s rules or regulations, the trier of fact determines whether the officer was acting as a public officer or as a servant of the employer.” Gibbons, 150 S.W.3d at 882 (citations omitted). According to the court, “it remains unclear what capacity Officer Hernandez was acting in at the time he committed the alleged acts.” We disagree. The complaint never alleges that Hernandez acted while “off-duty.” Gibbons, 150 S.W.3d at 882. Nor does it allege that Hernandez was being paid by the Stainback Organization when he investigated the plaintiffs’ conduct, collected evidence, brought the evidence to the SIU, or recommended charges to the District Attorney’s Office. Rather, the complaint alleges that Hernandez was motivated to act by a Stainback representative and used his authority as a detective to act for the benefit of the Stainback Organization. Regardless of motive, these were acts that only a detective, not a private citizen, could undertake. See Gibbons, 150 S.W.3d at 883, 883 n.7; Seward, __ S.W.3d at __, 2025 WL at *9. As numerous authorities cited above demonstrate, Hernandez acted within the scope of his employment for purposes of the Texas Tort Claims Act. IV. We do not condone the actions of Detective Hernandez as pled, but regardless of his motives, the alleged conduct falls squarely within the scope of his employment with the Dallas Police Department. The judgment of the district court as to the plaintiffs’ state-law claims is accordingly
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REVERSED with instructions to Dismiss those claims, and the case is REMANDED for further proceedings on plaintiffs’ remaining federal claim.
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Andrew S. Oldham, Circuit Judge, concurring: I fully concur in the majority’s excellent opinion. But I am troubled by our court’s longstanding extension of the collateral-order doctrine to state- law immunities. I In 1891, Congress created the courts of appeals and granted them jurisdiction over “final decision[s].” Evarts Act, ch. 517, § 6, 26 Stat. 826, 828 (1891); see also Act of June 25, 1948, ch. 83, § 1291, 62 Stat. 929, 929 (codified at 28 U.S.C. § 1291) (changing the language to “final decisions”). About 60 years later, the Supreme Court offered an interpretation of the finality requirement that has since become known as the collateral-order doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). The collateral-order doctrine teaches that decisions are final and thus appealable if they are “conclusive,” “resolve important questions separate from the merits,” and are “effectively unreviewable on appeal from the final judgment in the underlying action.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009) (quotation omitted). The Supreme Court has emphasized that the collateral-order doctrine is not expansive. See Cohen, 337 U.S. at 546 (explaining that only a “small class” of decisions that are not final judgments are immediately appealable). And the Court has reiterated this point in recent years: “In case after case in year after year, the Supreme Court has issued increasingly emphatic instructions that the class of cases capable of satisfying this ‘stringent’ test should be understood as ‘small,’ ‘modest,’ and ‘narrow.’” United States v. Wampler, 624 F.3d 1330, 1334 (10th Cir. 2010) (Gorsuch, J.) (quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994); Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42 (1995); Will v. Hallock, 546 U.S. 345, 350 (2006); Mohawk, 558 U.S. at 113). The strength of these instructions
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is hard to overstate. See, e.g., Will, 546 U.S. at 350 (“[W]e have not mentioned applying the collateral order doctrine recently without emphasizing its modest scope,” and “we have meant what we have said. . . .”); Mohawk, 558 U.S. at 113 (“[W]e reiterate that the class of collaterally appealable orders must remain narrow and selective in its membership.” (quotation omitted)). The Supreme Court has pointed to rulemaking, rather than judicial decisions, as the ordinary method to permit immediate appeals of classes of orders not already recognized by the Court. In 1990, Congress authorized the Supreme Court to use rulemaking to “define when a ruling of a district court is final” under § 1291. 28 U.S.C. § 2072(c). Then in 1992, Congress further empowered the Court to create rules “to provide for an appeal of an interlocutory decision to the courts of appeals that is not otherwise provided for under” under § 1292. Id. § 1292(e). Since the enactment of these statutes, the Court has suggested that “further avenue[s] for immediate appeal of” rulings that fall outside of current Supreme Court precedent should usually “be furnished . . . through rulemaking” by the Court. Mohawk, 558 U.S. at 114. Accord Swint, 514 U.S. at 48; Cunningham v. Hamilton County, 527 U.S. 198, 210 (1999); Microsoft Corp. v. Baker, 582 U.S. 23, 39–40 (2017). II This background informs my concern about treating the denial of state-law immunities as immediately appealable. True, our court has long exercised interlocutory appellate jurisdiction over orders denying certain state-law immunities. See Sorey v. Kellett, 849 F.2d 960, 961 (5th Cir. 1988). But that precedent is ripe for reconsideration. A There are three straightforward reasons why the collateral-order doctrine should not extend to the denial of state-law immunities.
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First, we have repeatedly held that States cannot “enlarge or contract federal jurisdiction.” Anthology, Inc. v. Tarrant Cnty. Coll. Dist., 136 F.4th 549, 553 (5th Cir. 2025) (quoting Tercero v. Tex. Southmost Coll. Dist., 989 F.3d 291, 298 (5th Cir. 2021)). That is a job the Constitution leaves exclusively to the American people’s representatives. See ibid. (citing Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850)). Extending the collateral-order doctrine to state-law immunities is in tension with this basic principle. Why? It essentially allows States to control our jurisdiction. If a State recognizes an immunity from suit, we have appellate jurisdiction; if a State treats the immunity as one from liability, we lack appellate jurisdiction. That is worrisome, to say the least. Second, the Supreme Court has never held that state-law immunities trigger the collateral-order doctrine. See Adam Reed Moore, A Textualist Defense of a New Collateral Order Doctrine, 99 N.D. L. Rev. Reflection 1, 9 (2023) (listing the immunities from suit the Court has recognized as immediately appealable, none of which derive from state law). Nor has the Court enacted a rule permitting immediate appeal of state-law immunities. The Court has indicated a general unwillingness to expand the class of collateral orders. See, e.g., Mohawk, 558 U.S. at 113–14. And it is hard to imagine that state-law immunities, which effectively allow States to define our appellate jurisdiction, overcome this skepticism. Third, the Supreme Court has indicated that only rights resting on an “explicit” federal “statutory or constitutional guarantee” are sufficient. Midland Asphalt Corp. v. United States, 489 U.S. 794, 801 (1989); see also Digital Equip., 511 U.S. at 874, 880 n.8.1 Obviously, state-law immunities do
_____________________ 1 A classic example is the set of immunities afforded to the President, who has a “unique position in the constitutional scheme.” Trump v. United States, 603 U.S. 593, 635– 37 (2024) (quoting Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982)). As “the only person who
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not derive from a federal statute or the federal constitution. So they do not justify “piecemeal, prejudgment appeals.” Mohawk, 558 U.S. at 106. We have no basis for saying that the denial of a state-law immunity justifies immediate appeal under the Supreme Court’s current doctrine.2 B So how has our precedent addressed these concerns? Like the proverbial ostrich with its head in the sand, our cases have responded to precisely zero of them. Instead, they have offered the following argument. P1: Denials of immunities from suit are collateral orders. P2: State law defines whether a state-recognized immunity is from suit or liability.
When state law defines an immunity as one from suit, the denial of such immunity is immediately appealable under the collateral-order doctrine. See, e.g., Sorey, 849 F.2d at 961–63; see ante, at 4–5. Both premises are doubtful. Start with the first premise. Not all so-called “immunities from suit” qualify for immediate appeal. Under Supreme Court precedent, “only some” immunities from suit warrant collateral-order status: “[I]t is not mere
_____________________ alone composes a branch of government,” id. at 610 (quotation omitted); see also id. at 639 (“[U]nlike anyone else, the President is a branch of government.”), the President is granted special “[s]olicitude” in seeking “immediate appellate review,” Dellinger v. Bessent, No. 25-5028, 2025 WL 559669, at *12 (D.C. Cir. Feb. 15, 2025) (Katsas, J., dissenting). 2 My concerns are especially pronounced in this case. The only issue in this appeal is the denial of a state-law immunity. But the only reason this claim can be in federal court at all is because of the federal claims not in this appeal. See 28 U.S.C. § 1367.
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avoidance of a trial, but avoidance of a trial that would imperil a substantial public interest, that counts.” Will, 546 U.S. at 351, 353; see also Digital Equip., 511 U.S. at 877, 884 (holding that an alleged immunity from suit was not a collateral order because it did “not rise to the level of importance needed for recognition under § 1291”). Thus, “the only time a claimed right not to stand trial will justify immediate appellate review under Cohen is when a statutory or constitutional provision guarantees that claimed right.” McClendon v. City of Albuquerque, 630 F.3d 1288, 1295–96 (10th Cir. 2011) (Gorsuch, J.) (quotation omitted); accord Wampler, 624 F.3d at 1335–36.3 Now consider the second premise. Regardless of how States characterize their immunities—whether from suit or liability—federal appellate courts have a duty to decide for themselves how a right is characterized for purposes of the collateral-order doctrine. See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201 (1988). The Supreme Court has “acknowledged that virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a ‘right not to stand trial’” or an immunity from suit. Digital Equip., 511 U.S. at 873. So because “there is no single, ‘obviously correct way to characterize’ an asserted right,” the Court has “held that § 1291 requires courts of appeals to view claims of a ‘right not to be tried’ with skepticism, if not a jaundiced eye.” Ibid. (emphasis added) (quoting Lauro Lines s.r.l. v. Chasser, 490 U.S. 495, 500 (1989)). In other words, it is our duty to determine if some right is a right not to be tried. See Van Cauwenberghe v. Biard, 486 U.S. 517, 524–25 (1988); cf. Anthology, 136 F.4th at 553 (explaining that federal courts are not _____________________ 3 To make matters worse, in some States, a denial of certain state-law immunities is not immediately appealable. See, e.g., Sorey, 849 F.2d at 962. If a particular state-law immunity is not important enough for the State’s own courts to hear an immediate appeal, it cannot be of such overwhelming importance that it demands immediate appeal in federal court. But see id. at 962–63.
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always bound by how state courts “treat their own state-law immunities”). Our precedents in this area have shirked that duty. At an appropriate time, we should reconsider them.