310
Opinion of the Court
The Court of Appeals expressed concern that a second appeal would tend to have the illegitimate purpose of delaying the proceedings. See 968 F. 2d, at 870-871. Undeniably, the availability of a second appeal affords an opportunity for abuse, but we have no reason to believe that abuse has often occurred. To the contrary, successive pretrial assertions of immunity seem to be a rare occurrence.4 Moreover, if and when abuse does occur, as we observed in the analogous context of interlocutory appeals on the issue of double jeopardy, "[i]t is well within the supervisory powers of the courts of appeals to establish summary procedures and calendars to weed out frivolous claims." Abney, 431 U. S., at 662, n. 8. In the present case, for example, the District Court appropriately certified petitioner's immunity appeal as "frivolous" in light of the Court of Appeals' (unfortunately erroneous) one-appeal precedent. This practice, which has been embraced by several Circuits, enables the district court to repealable final orders because it is insufficiently "separable" from the claim raised on the first appeal, see post, at 316. But the Cohen "separability" component asks whether the question to be resolved on appeal is "conceptually distinct from the merits of the plaintiff's claim." Mitchell v. Forsyth, 472 U. S. 511, 527 (1985). The appropriate comparison, then, is between the decision sought to be reviewed and the claim underlying the action itself—not between the decision and any previous appeal, as Justice Breyer suggests. And again, Mitchell clearly states that a denial of qualified immunity, whether on a motion for dismissal or summary judgment, is an "appealable 'final decision.' " Id., at 530.
4 We are aware of only five reported cases—Mitchell itself, Nelson v. Silverman, 999 F. 2d 417 (CA9 1993), Abel v. Miller, 904 F. 2d 394 (CA7 1990), Francis v. Coughlin, 891 F. 2d 43 (CA2 1989), and the present case—in which Courts of Appeals have been twice asked to review successive pretrial assertions of immunity. See Abel, supra, at 396 ("Paucity of precedent [on successive interlocutory appeals] must reflect the forbearance of public officials rather than lack of opportunity"); Kaiter v. Boxford, 836 F. 2d 704, 706 (CA1 1988) ("[I]n every case we have found which permitted interlocutory review of an immunity ruling, the defendant's entire claim to immunity was raised in a single proceeding").
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