ERVIN, Circuit Judge,
dissenting:
Were I to think it proper to do so, I would agree with the analysis offered by Judge Motz in her dissenting opinion. However, I do not believe we possess appellate jurisdiction to reach the merits. I therefore join neither opinion and write separately to explain why this appeal should be dismissed.
I cannot agree with the majority’s determination that we possess jurisdiction to hear this appeal. Ordinarily, appellate jurisdiction is lacking to hear an appeal from an order denying a Rule 12(b)(6) motion to dismiss since such an order is interlocutory in nature. Certain collateral orders are, however, considered “final decisions” within the meaning of 28 U.S.C. § 1291 and are there fore immediately appealable. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). In Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), the Supreme Court stated that the “small class” of collateral orders comprise those that “conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and [are] effectively unreviewable on appeal from a final judgment.” Id. at 468, 98 S.Ct. at 2458.
In particular, certain denials of absolute and qualified immunity fall within this collateral order doctrine. In Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982), the Court held that an order denying a motion for summary judgment on the basis of absolute immunity was immediately appealable. Id. at 740, 742-43, 102 S.Ct. at 2696, 2697-98. In doing so, it noted that it had twice before held that “orders denying claims of absolute immunity are appealable under the Cohen criteria.” Id. at 742, 102 S.Ct. at 2697 (citing Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979); Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)). Both of these cases, however, arose in the criminal context, Helstoslci dealing with a congressman’s immunity under the Speech and Debate Clause and Abney dealing with the right not to be exposed to double jeopardy.
In Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Court extended the collateral order doctrine to include the denial of qualified immunity raised in a motion for summary judgment. Id. at 517, 524-30, 105 S.Ct. at 2810, 2814-18. The Mitchell Court stressed that a “major characteristic of the denial or granting of a claim appealable under Cohen’s ’ collateral order’ doctrine is that ‘unless it can be reviewed before[the proceedings terminate], it never can be reviewed at all.’ ” Id. at 525, 105 S.Ct. at 2815 (citations omitted). Immunity is “an entitlement not to stand trial under certain circumstances,” id., so that officials are not subjected to burdens of broad-reaching discovery and costs of trial. The Court’s entire analysis was couched in terms of appeals from denials of summary judgment because it is that denial that “finally and conclusively determines the defendant’s claim of right not to stand trial on the plaintiffs allegations.” Id. at 527, 105 S.Ct. at 2816 (emphasis in original).
Since Mitchell the Court has occasionally discoursed upon immunity claims and the collateral order doctrine in sundry dicta. In Lauro Lines s.r.l. v. Chasser, 490 U.S. 495, 109 S.Ct. 1976, 104 L.Ed.2d 548 (1989), for example, the Court did state the proposition more broadly that “in civil cases, we have held that the denial of a motion to dismiss based upon a claim of absolute immunity from suit is immediately appealable prior to final judgment,” id. at 499, 109 S.Ct. at 1979, but the Court cited only to Nixon and Mitchell, both cases arising from summary judgment orders. More recently, however, the Court has confirmed its reluctance to expand the exceptions of the collateral order doctrine, stressing that the “ ‘narrow’ exception should stay that way and never be allowed to swallow the general rule.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868, 114 S.Ct. 1992, 1996, 128 L.Ed.2d 842 (1994). In dictum leaning the other way, the Court stated that Mitchell and Abney may only be “fairly cited for the proposition that orders denying certain immunities are strong candidates for prompt appeal under § 1291.” Id. at 871, 114 S.Ct. at 1998 (emphasis added). I would construe this language to be far from a categorical rule requiring that any order denying absolute or qualified immunity is an immediately appealable collateral order. Moreover, the Supreme Court has specifically directed courts of appeal “to view claims of a ‘right not to be tried’ with skepticism, if not a jaundiced eye.” Id. at 873, 114 S.Ct. at 1999; cf. Van Cauwenberghe v. Biard, 486 U.S. 517, 524, 108 S.Ct. 1945, 1950, 100 L.Ed.2d 517 (1988) (“The critical question, following Mitchell, is whether ‘the essence’ of the claimed right is a right not to stand trial”).
In the last two years, the Supreme Court has twice dealt with qualified immunity claims in federal actions arising from sum mary judgment postures. In Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), a unanimous Court held that the denial of summary judgment on a qualified immunity defense claim was not an immediately appealable order to the extent that the order determined there were genuine issues of fact for trial. In the course of its analysis of the collateral order doctrine, the Court noted two considerations that would clearly counsel against finding the order in the instant case to be immediately appealable. First, interlocutory appeals hazard wasting appellate court resources by presenting “appellate courts with less developed records” or by bringing them “appeals that, had the trial simply proceeded, would have turned out to be unnecessary.” Id. at 309, 115 S.Ct. at 2154 (citations omitted). Clearly, without even an answer having been filed, we face a less-than-developed record. Second, Cohen’s criterion that the matter be collateral to the merits of the action “means that review now is less likely to force the appellate court to consider approximately the same (or a very similar) matter more than once, and also seems less likely to delay trial court proceedings (for, if the matter is truly collateral, those proceedings might continue while the appeal is pending).” Id. at 311, 115 S.Ct. at 2155 (emphasis in original). Because the immunity defense may be raised later, I believe we would have been presented with the same issue, but more factually developed, later. It is worth pointing out that the Court carefully noted — twice—that Mitchell dealt only with the appealability of an order denying summary judgment. See id. at 311-12, 115 S.Ct. at 2155-56.
Two terms ago, the Court appeared to limit Johnson. In Behrens v. Pelletier, - U.S. -, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996), the Court held that a denial of summary judgment on a qualified immunity claim, not predicated on a fact-based determination as in Johnson, remained immediately appealable even though an earlier interlocutory appeal had denied the immunity defense. Although an unusual posture, the Court plainly was dealing with a qualified immunity defense in the summary judgment context. While the Court twice declared that Mitchell’s interlocutory appeal rule applied to both denials of qualified immunity at the dismissal or summary judgment stage, id. at -, 116 S.Ct. at -, 133 L.Ed.2d at 784-85, the language in both cases is dicta construing dicta.
In the first instance, the Court stated, “Mitchell clearly establishes that an order rejecting the defense of qualified immunity at either the dismissal stage or the summary judgment stage is a ‘final’ judgment subject to immediate appeal.” Behrens, at -, 116 S.Ct. at 839, 133 L.Ed.2d at 784 (emphases in original). This comment, however, directly construes the following language from Mitchell:
Unless the plaintiffs allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. Even if the plaintiffs complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts.
Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) (citation omitted); see Behrens, at -, 116 S.Ct. at -, 133 L.Ed.2d at 784 (quoting this language). The phrase “dismissal before the commencement of discovery” in this context does not mean a Rule 12(b)(6) dismissal before an answer has been filed. Instead, it only means that, in certain circumstances, the defendant may avoid discovery, as, for example, where the defendant pleading immunity moves for judgment on the pleadings pursuant to Rule 12(c) or immediately moves for summary judgment before discovery has commenced. When the above language is read in its full context, it is clear the Mitchell Court did not envision denials of Rule 12(b)(6) motions to be immediately appeal-able. Thus the sentences before and after the above quoted language state:
[T]he Harlow [v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)] Court refashioned the qualified immunity doctrine in such a way as to “permit the resolution of many insubstantial claims on summary judgment ” and to avoid “subject[ing] government officials either to the costs of trial or to the burdens of broad-reaching discovery” in cases where the legal norms the officials are alleged to have violated were not clearly established at the time. Id. at 817-18, 102 S.Ct. at 2738. [The above quoted language appears here.] Harlow thus recognized an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal question whether the conduct of which the plaintiff complains violated clearly established law.
Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815 (emphasis added). Mitchell, then, was emphatically concerned with the summary judgment posture, as was Harlow. Nowhere does this language imply that a defendant should be free from the burdens of answering a complaint, nor that if that tack is taken, and rejected by the district court, that such a defendant may immediately appeal that denial.
In the second instance, the Behrens Court stated that the proposition that “there could be no immediate appeal from denial of a motion to dismiss but only from denial of summary judgment ... is foreclosed by Mitchell, which unmistakably envisioned immediate appeal of ‘[t]he denial of a defendant’s motion for dismissal or summary judgment on the ground of qualified immunity.’” Behrens, at -, 116 S.Ct. at 839, 133 L.Ed.2d at 785 (quoting Mitchell, 472 U.S. at 527, 105 S.Ct. at 2816) (emphasis in original). Again, when this language from Mitchell is read in context, it is plain that the Mitchell Court was not contemplating immediate appeals of denials of Rule 12(b)(6) motions. In the same paragraph, after considering why it is that the district court’s decision is “conclusive” within the meaning of the collateral order doctrine, the Mitchell Court stated that “the court’s denial of summary judgment finally and conclusively determines the defendant’s claim of right not to stand trial on the plaintiffs allegations.” Mitchell, 472 U.S. at 527, 105 S.Ct. at 2816 (first emphasis added; second emphasis in original).
Thus, in both instances, although the Mitchell Court did slip in the term “dismissal,” whether consciously or inadvertently, Mitchell itself dealt unequivocally with the denial of summary judgment, and the entire opinion, in context, was cast in those terms, for the Court was principally concerned with subjecting defendants to the costs and burdens of going beyond summary judgment and into the next phase of litigation.
Indeed, as the dissent in Behrens accurately pointed out, Mitchell was “concerned primarily with preserving defendants’ immunity from trial, not discovery,” and that is why the Court had never before even suggested that an interlocutory appeal could protect a defendant’s “anti-discovery interest.” Id. at -, 116 S.Ct. at 844, 133 L.Ed.2d at 792 (Breyer, J., dissenting) (emphasis in original). Given the procedural posture of the case, I would therefore construe Behrens to mean only that any prior adjudication of qualified immunity prior to summary judgment will not necessarily have res judicata or other effect on the law of the case and that courts of appeal therefore cannot refuse to hear, for lack of jurisdiction, interlocutory appeals of denials of qualified immunity at the summary judgment stage.
Despite all this conflicting dicta, the Supreme Court has yet to face squarely the issue of whether the denial of a claim of qualified immunity arising in the context of a Rule 12(b)(6) motion satisfies the Cohen criteria for an appealable collateral order. We have held, however, in a clearly distinguishable Rule 12(b) context, that an order granting a plaintiffs motion to strike a defendant’s absolute immunity defense is immediately appealable under Nixon. Front Royal and Warren County Indus. Park Corp. v. Town of Front Royal, 865 F.2d 77, 79 (4th Cir. 1989). Obviously, the motion to strike arose after the answer had been filed.
In the instant case, this appeal arose before Medford had ever filed his answer. Immunity is an affirmative defense whose burden of pleading rests with the defendant and which does not go to the existence of a § 1983 cause of action. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923-24, 64 L.Ed.2d 572 (1980); see also Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991) (“Qualified immunity is a defense that must be pleaded by a defendant official.”). The district court’s denial of the motion to dismiss did nothing more than look to the adequacy of the plaintiffs-appellees’ complaint to satisfy the Rule 12(b) criteria.
In the context of this particular case, it is crucial to recognize that, were we to dismiss the appeal, Medford will not have been denied his opportunity to assert this defense, for he may do so in his answer. After the pleadings are closed, Medford may then move for judgment on the pleadings pursuant to Rule 12(c) or for summary judgment pursuant to Rule 56 on the basis of his claim of immunity. If that motion is denied, Med-ford may then appeal, an appeal that would be reviewable under the collateral order doctrine. See Behrens, supra. In fact, it is these possible later bites at the appellate apple on the immunity claim — before the burdens of full discovery and the costs of trial — that demonstrate that the denial of a Rule 12(b)(6) motion to dismiss is not a denial that “finally and conclusively determines the defendant’s claim of right not to stand trial on the plaintiffs allegations.” Mitchell v. Forsyth, 472 U.S. 511, 527, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985) (emphasis in original). Although our sister circuits have treated denials of Rule 12(b)(6) motions raising immunities as collateral orders, none has actually analyzed, as I do here, whether it possessed jurisdiction to do so. See, e.g., Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir.1996); Morin v. Caire, 77 F.3d 116, 119 (5th Cir.1996); Wilson v. Formigoni, 42 F.3d 1060, 1062 (7th Cir.1994); Figueroa v. United States, 7 F.3d 1405, 1408 (9th Cir.1993), cert. denied, 511 U.S. 1030, 114 S.Ct. 1537, 128 L.Ed.2d 190 (1994). Nevertheless, because this crucial criterion for determining whether an order is collateral is not satisfied in the Rule 12(b)(6) context, I would conclude that we lack appellate jurisdiction to hear this appeal.
I do not believe that we are obliged to follow the dicta in Behrens. To do so in this instance contravenes our nature as a court of limited jurisdiction. We ought to interpret any dicta that affects our jurisdiction in as narrow a fashion as possible, and we should never reach out to address issues that are not properly before us. I believe that the court, by adopting the Behrens dicta as the rule in this circuit, has violated both of these jurisprudential principles.
That violation is particularly egregious here, for the majority ultimately determines that it need not even reach the issue of whether Medford is entitled to qualified immunity. Majority op. at 21. The majority has invoked a questionable jurisdictional basis only to invoke the equally questionable notion of pendent appellate jurisdiction. See Swint v. Chambers County Comm’n, 514 U.S. 35, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). Only by such a doubly tenuous thread is the majority able to review, and reverse, the denial of a Rule 12(b)(6) dismissal motion.
The majority relies on our panel decision in Taylor v. Waters, 81 F.3d 429, 437 (4th Cir.1996), as grounds upon which to exercise pendent appellate jurisdiction. See Majority op. at 3 n.2. Taylor, however, recognized the limitations of appellate jurisdiction. Although Taylor noted that pendent appellate jurisdiction would exist only if the pen dent issue were “(1) inextricably intertwined with the decision of the lower court to deny qualified immunity or (2) consideration of the additional issue is necessary to ensure meaningful review of the qualified immunity question,” Taylor, 81 F.3d at 437, the Taylor panel concluded that it lacked jurisdiction to review the pendent issues. Taylor, therefore, provides only tangential support, at best, for the exercise of pendent jurisdiction here. Indeed, we have never invoked pendent appellate jurisdiction in the wake of Swint. See Garraghty v. Commonwealth of Va., Dep’t of Corrections, 52 F.3d 1274, 1279 n. 5 (4th Cir.1995); Renn v. Garrison, 100 F.3d 344, 352 (4th Cir.1996). I do not believe we should do so here without a serious analysis of its ramifications, especially since the issue providing the jurisdictional basis on which it is invoked is not even reached.
The majority, for whatever reason, is apparently strongly motivated to reach out and strike down Jones v. Dodson, 727 F.2d 1329 (4th Cir.1984). To do so it is willing to expand our constitutionally- and eongressionally-limited jurisdiction to reverse the denial of a motion to dismiss, before an answer has even been filed. I will not join in this Orwellian perversion of the final judgment rule and our long-established precepts of notice pleading. I, therefore, respectfully dissent.
In the term just completed, the Court did again address the issue of qualified immunity in Johnson v. Fankell, - U.S. -, 117 S.Ct. 1800, 138 L.Ed.2d 108 (1997). That case concerned, however, whether defendants in a state-court § 1983 action have a federal right to an interlocutory appeal from a denial of qualified immunity. Although the Court ruled that there was no such federal right, I do not read the opinion as providing any further guidance in dealing with qualified immunity in federal actions.