300
Syllabus
less "final" than it would be absent the prior decision. It follows that petitioner's appeal seeks review of a "final decision" within § 1291 and that its dismissal by the Court of Appeals was improper. The Ninth Circuit's proposition that no more than one judiciously timed appeal should be necessary to safeguard a defendant's right to qualified immunity is unsound, because the factors determinative of the qualified-immunity question will be different on summary judgment, where the court looks to the uncontested evidence, than on an earlier motion to dismiss, where it merely looks to the allegations of the complaint. Pp. 305-311. (b) Respondent's additional arguments as to why dismissal was proper—(1) that the order denying qualified immunity could not be said to be "final" under Cohen since, even if it were to be reversed, petitioner would nonetheless be required to endure discovery and trial on other matters, and (2) that, under Johnson v. Jones, 515 U. S. 304, the denial of summary judgment is not immediately appealable because it rests on the determination that a genuine dispute exists as to material issues of fact—are also rejected. Pp. 311-313.
Reversed and remanded.
Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, J., joined, post, p. 314.
Lenard G. Weiss argued the cause for petitioner. With him on the briefs was Christine A. Murphy.
Cornelia T. L. Pillard argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Bender, Barbara L. Herwig, and Richard A. Olderman.
Samuel T. Rees, by appointment of the Court, 515 U. S. 1101, argued the cause for respondent. With him on the brief was Michael J. White.*
*Louise H. Renne, Dennis Aftergut, G. Scott Emblidge, Ronald R. Ball, David J. Erwin, J. Kenneth Brown, Norman Herring, Edward J. Foley, Charles J. Williams, James K. Hahn, Katherine J. Hamilton, Gregory P. Priamos, Edward J. Cooper, Rene Auguste Chouteau, Mark G. Sellers, David B. Brearley, and Robert E. Murphy filed a brief for the City and County of San Francisco as amicus curiae urging reversal.
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