Our jurisdiction becomes problematic only when the district court
denies a pre-trial motion based on a qualified immunity defense. A district court's denial of a pre-trial motion, such as a motion to dismiss for failure to state a claim or a motion for judgment on the pleadings or for summary judgment, is generally not a reviewable final order under
section 1291. It is the qualified immunity defense that gives us jurisdiction to review a denial of such a motion in order to protect effectively the defendant's “claim of right” to avoid litigation—a claim that must, under
Cohen 's collateral order doctrine, be “separable from, and collateral to, rights asserted in the action.”
Cohen, 337 U.S. at 546, 69 S.Ct. at 1225–26. In deciding the qualified immunity issue, however, the district court considers whether the defendant's conduct as presented—whether gleaned from the complaint or the record as a whole—did or did not violate law that was clearly established at the time. The district court's denial of the motion thus contains the implicit determination that the plaintiff has presented a claim for which the law ordinarily provides relief; otherwise, defendant would be necessarily immune because his conduct could not have violated clearly established law. Similarly, appellate review, although limited to “issue[s] of law,” must entail consideration of the
factual underpinnings of the plaintiff's claim for relief in order to assess the defendant's entitlement to immunity. This court might disagree with the district court that these factual underpinnings make out a claim for relief—an issue that we normally lack jurisdiction to decide on an interlocutory appeal—but our jurisdiction, based as it is on the immunity defense, is nonetheless uncompromised: if the plaintiff has no claim upon which relief can be granted, the defendant necessarily has qualified immunity, for under no version of the facts presented did his conduct violate clearly established law. Our rationale may embrace the plaintiff's underlying claim, but we consider that claim only insofar as its factual support establishes defendant's immunity from suit.