concurring.
In Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985), the Supreme Court held, “a district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision.’” (Emphasis added.) Here, the district court denied a claim of qualified immunity by ignoring it. In my view, we have jurisdiction to review that denial. In cases where qualified immunity is not clearly warranted, it may be prudent to remand to give the district court a chance to remedy its oversight. But I now believe that our court — including myself when I joined Part III of Jones v. Coonce, 7 F.3d 1359, 1365 (8th Cir.1993) — has gone astray in declaring that we have no jurisdiction to step in where the purposes of qualified immunity will be furthered by its immediate application. Thus, I concur in a remand here only because I am bound by our prior decisions.
However, I do not agree with footnote 3 of the court’s opinion. Over three years ago, the Supreme Court declared that issues of qualified immunity “ordinarily should be decided by the court long before trial.” Hunter v. Bryant, 502 U.S. 224, 228-29, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991). In my view, when defendants move for summary judgment in a case of this type, the first thing the district court should confirm is whether they assert a claim of qualified immunity. If this critical threshold defense has been raised, as it admittedly was here, I think it undermines the doctrine’s purpose for us to excuse the district court’s neglect because the issue received relatively little emphasis in defendants’ summary judgment papers.
I also think the court gives the district court too little guidance on remand. When multiple defendants raise a qualified immunity defense, the district court must “examine each of the claims carefully [and] determine who is involved in each claim, to what extent, and whether those officials who were involved are entitled to qualified immunity.” Jones v. Coonce, 7 F.3d at 1365. In this case, the district court not only ignored the qualified immunity defense, but it also denied summary judgment on the merits because “[t]he question at hand is whether plaintiff had his thirty-day hearing within a reasonable time,” without regard to the role of each defendant in that delay. As I read the undisputed facts of record, the final decision on Mr. Washington’s alleged misconduct was delayed because a non-defendant prison investigator neglected to complete an investigation that the defendants thought was in process. Were we writing on a clean jurisdictional slate, I would hold that defendants are entitled to qualified immunity and reverse the denial of summary judgment on this claim. Being bound to join in this jurisdictional *42remand, I strongly agree that the district court should promptly take up the qualified immunity issue, applying the standards of Jones v. Coonce and other pertinent qualified immunity precedents.