Scott Hanson v. William Shubert

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SCOTT HANSON, No. 19-35839

Plaintiff-Appellee,

D.C. No.

v. 1:16-cv-00421-

BLW

WILLIAM SHUBERT; JESUS

GONZALEZ,

Defendants-Appellants, OPINION

and

BLAINE COUNTY; GOODING COUNTY;

JUDITH PETERSON; GENE D. RAMSEY;

SHAUN GOUGH; IDAHO DEPARTMENT

OF CORRECTION; KEVIN WAYT; JOHN

DOES, I–X,

Defendants.

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, District Judge, Presiding

Argued and Submitted July 10, 2020

Seattle, Washington

Filed August 4, 2020

2 HANSON V. SHUBERT

Before: Jacqueline H. Nguyen and Patrick J. Bumatay,

Circuit Judges, and Richard Seeborg, * District Judge.

Opinion by Judge Seeborg;

Concurrence by Judge Bumatay

SUMMARY **

Civil Rights

The panel dismissed, for lack of jurisdiction, an appeal

from the district court’s orders (a) denying, on summary

judgment, a motion for qualified immunity; and (b) denying

a motion to reconsider the summary judgment order.

The panel first noted that, at oral argument, appellants

acknowledged that their motion for reconsideration, filed

almost a year after the district court denied summary

judgment, was brought under Federal Rules of Civil

Procedure 59(e) to alter or amend the judgment, rather than

pursuant to Rule 60(b).

The panel held that it lacked jurisdiction over the appeal

of the summary judgment order in this case because it was

untimely. The panel noted that there was no dispute that the

appeal was filed nearly a year after the underlying summary

judgment order. While a timely filed Rule 59(e) motion may

*

The Honorable Richard Seeborg, United States District Judge for

the Northern District of California, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

HANSON V. SHUBERT 3

toll the appeals period, see Fed. R. App. P. 4(a)(4)(A)(iv),

the reconsideration motion here was filed nearly a year after

the underlying summary judgment order. The panel held that

the filing of an untimely motion will not toll the running of

the appeal period.

The panel held that it lacked jurisdiction over the order

denying the Rule 59(e) motion for reconsideration, where it

did not have jurisdiction over the appeal of the underlying

order. The panel held that appellants could not use their

motion for reconsideration, filed nearly one year after the

underlying order, to resurrect their right to appeal the district

court’s order denying them qualified immunity.

Furthermore, appellants failed to make any showing that the

order denying their motion to reconsider was otherwise

immediately appealable. In footnote 4, the panel noted that

a case might arise, for example, where intervening law

between a denial of qualified immunity and a denial of

reconsideration renders the collateral order doctrine

applicable to the latter. This however, was not that case. The

panel declined to exercise discretion under Fed. R. App.

P. 38 to award the defendant/appellee attorney’s fees for this

appeal.

Concurring in all but footnote 4 of the opinion and

concurring in the judgment, Judge Bumatay stated that while

he concurred with the opinion, he would follow the First,

Second, and Tenth Circuits and adopt a bright line rule

against jurisdiction in this case. Accordingly, Judge

Bumatay did not join footnote 4.

4 HANSON V. SHUBERT

COUNSEL

Blake G. Hall (argued) and Sam L. Angell, Hall Angell &

Associates LLP, Idaho Falls, Idaho, for Defendants-

Appellants.

Nathan M. Olsen (argued), Petersen Moss Hall & Olsen,

Idaho Falls, Idaho, for Plaintiff-Appellee.

OPINION

SEEBORG, District Judge:

William Shubert and Jesus Gonzalez seek review of two

orders: the district court’s denial of summary judgment,

which resulted in a denial of qualified immunity, and the

district court’s denial to reconsider the summary judgment

order. The threshold question, before any consideration of

the merits, is one of jurisdiction. As we find appellate

jurisdiction is lacking, this appeal must be dismissed.

I. Factual and Procedural History

Scott Hanson is practically blind in his right eye. He

alleges this is in part because of deliberate indifference by

appellants to his medical needs while he was incarcerated at

Gooding County Jail, where they served as deputies. In

2016, Hanson sued, among others, Shubert and Gonzalez,

alleging violations of his Eighth and Fourteenth Amendment

rights.

In April 2018, defendants moved for summary judgment,

with Shubert and Gonzalez arguing qualified immunity

should shield them from Hanson’s claims. On July 9, 2018,

the district court entered a summary judgment order which

HANSON V. SHUBERT 5

in part found that Shubert and Gonzalez could not be

accorded qualified immunity as a matter of law, as genuine

factual disputes remained as to whether they violated

Hanson’s clearly established rights.

On July 3, 2019, almost a year later, Shubert and

Gonzalez filed a motion for reconsideration of the denial of

summary judgment. The stated basis for the motion was the

issuance of a new Supreme Court opinion, i.e., City of

Escondido v. Emmons, 139 S. Ct. 500 (2019) (per curiam).

None of the parties raised the issue of the timeliness of the

motion. On September 19, 2019, the district court entered an

order denying the motion on the merits.

On October 1, 2019, Shubert and Gonzalez appealed

both the order denying reconsideration and the underlying

summary judgment denial. Not addressed in either side’s

briefing was jurisdiction over this appeal. Accordingly, we

instructed the parties to address the question of appellate

jurisdiction at oral argument.

II. Discussion

Appellants grounded their motion for reconsideration in

the district court ostensibly on both Federal Rules of Civil

Procedure 59(e) and 60(b). 1 At oral argument, appellants

1

Rule 59(e) provides for a “motion to alter or amend a judgment”

within twenty-eight days of the underlying order. Fed. R. Civ. P. 59(e).

Rule 60(b) allows for “relief from a final judgment, order, or proceeding”

for any of six reasons: (1) mistake, inadvertence, surprise, or excusable

neglect; (2) newly discovered evidence that could not have been

discovered in time to move for a new trial; (3) fraud, misrepresentation,

or misconduct; (4) the judgment is void; (5) the judgment has been

satisfied; or (6) any other reason that justifies relief. A Rule 60(b) motion

must be made “within a reasonable time,” and for reasons (1), (2), and

(3), within no more than a year. Fed. R. Civ. P. 60(c)(1).

6 HANSON V. SHUBERT

acknowledged that their motion for reconsideration was

brought under Rule 59(e) to alter or amend the judgment. We

hold this appeal is untimely and must be dismissed.

Under Federal Rule of Appellate Procedure 4(a) and

28 U.S.C. § 2107(a), a notice of appeal must be filed within

thirty days of the entry of the judgment or underlying order

from which the appeal is taken. The thirty-day time limit is

“mandatory and jurisdictional.” Melendres v. Maricopa

Cnty., 815 F.3d 645, 649 (9th Cir. 2016) (internal citation

omitted). Failure to file a notice of appeal within the

applicable time limit must result in dismissal for lack of

jurisdiction. Id.

We lack jurisdiction over the appeal of the summary

judgment order in this case because it is untimely. There is

no dispute that the appeal was filed nearly a year after the

underlying summary judgment order. While a timely filed

Rule 59(e) motion may toll the appeals period, see Fed. R.

App. P. 4(a)(4)(A)(iv), the reconsideration motion here was

filed nearly a year after the underlying summary judgment

order. 2 “The filing of an untimely motion will not toll the

2

As noted, the district court did not discuss the timeliness of the

reconsideration motion. It instead stated that a “denial of a motion . . .

for summary judgment may be reconsidered at any time before final

judgment,” citing Preaseau v. Prudential Insurance Co., 591 F.2d 74,

79–80 (9th Cir. 1979). Preaseau, however, only states that “an order

denying a motion for summary judgment is generally interlocutory and

‘subject to reconsideration by the court at any time,’” id. (quoting Dessar

v. Bank of Am. Nat’l Tr. and Sav. Ass’n, 353 F.2d 468, 470 (9th Cir.

1965)), such that “a subsequent motion for summary judgment may be

made and granted,” id. at 80 n.4. That an order is “subject to

reconsideration” at any time does not imply that a motion for

reconsideration may be filed at any time, especially when the Federal

Rules of Civil Procedure advise otherwise. Nevertheless, Hanson did not

contest the timeliness of the reconsideration motion in the district court

HANSON V. SHUBERT 7

running of the appeal period.” Scott v. Younger, 739 F.2d

1464, 1467 (9th Cir. 1984) (citing Cel-A-Pak v. Cal. Agric.

Labor Relations Bd., 680 F.2d 664, 666 (9th Cir. 1982)). 3

This leaves the appeal of the order denying

reconsideration, which was filed within thirty days of the

issuance of the order. “[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’ within the meaning

of 28 U.S.C. § 1291 notwithstanding the absence of a final

judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

Neither the Supreme Court nor this court, however, has

addressed the situation here: the appeal of an order denying

a motion to reconsider the earlier denial of qualified

immunity, which had not itself been timely appealed.

While interlocutory orders are not typically immediately

appealable, there exists a “small class [of interlocutory

orders] which finally determine claims of right separable

from, and collateral to, rights asserted in the action, too

important to be denied review and too independent of the

cause itself to require that appellate consideration be

deferred until the whole case is adjudicated.” Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). The

Supreme Court in Mitchell reasoned that a denial of qualified

immunity, to the extent it turns on an issue of law, falls

within that small class, because qualified immunity is not

only an entitlement to be free from liability for having

and therefore waived the issue. See In re Onecast Media, Inc., 439 F.3d

558, 562 (9th Cir. 2006).

3

Considering the reconsideration motion under Rule 60(b) would

not save the appeal, because a Rule 60 motion only tolls the appeals

period if it “is filed no later than 28 days after the judgment is entered.”

Fed. R. App. P. 4(a)(4)(A)(vi).

8 HANSON V. SHUBERT

violated a right, but also is “in part an entitlement not to be

forced to litigate the consequences of official conduct . . . .”

Mitchell, 472 U.S. at 527–28. That is, a denial of qualified

immunity “(1) conclusively determine[s] the disputed

question,” i.e., whether the government official should have

to stand trial, “(2) resolve[s] an important issue separate and

collateral to the merits of the underlying action; and (3) [is]

effectively unreviewable from a final judgment,” since the

official will necessarily already have had to defend

themselves at trial. Powell v. Miller, 849 F.3d 1286, 1288

(10th Cir. 2017). The same cannot be said of orders denying

reconsideration of the denial of qualified immunity. Put

differently,

Unlike the substantive ruling on qualified

immunity, the determination by the district

court whether to reconsider that ruling does

not raise important issues of the type

allowing interlocutory appeal. The legal

question before us on appeal from an order

denying reconsideration is whether the

district court abused its discretion when

denying reconsideration . . . . Denial of

reconsideration does not resolve an important

issue, but merely resolves whether to revisit

an important issue. Whether reconsideration

was properly denied is just as reviewable

following final judgment as a whole host of

other issues that must await final judgment

before a party can appeal them.

Lora v. O’Heaney, 602 F.3d 106, 111–12 (2d Cir. 2010).

We agree with the reasoning in Powell and Lora, and

today hold that we lack jurisdiction over an order denying a

HANSON V. SHUBERT 9

Rule 59(e) motion for reconsideration of a denial of qualified

immunity, where we do not have jurisdiction over the appeal

of the underlying order. Shubert and Gonzalez “cannot use

[their] motion for reconsideration,” filed nearly one year

after the underlying order, “to resurrect [their] right to appeal

the district court’s order denying [them] qualified

immunity.” Powell, 849 F.3d at 1289. Furthermore, they

have “failed to make any showing that the order denying

[their] motion to reconsider is otherwise immediately

appealable.” Id. 4

Based on the foregoing, we must dismiss this appeal

because we lack jurisdiction. Furthermore, we decline to

exercise our discretion under Fed. R. App. P. 38 to award

Hanson attorney’s fees for this appeal.

APPEAL DISMISSED.

BUMATAY, Circuit Judge, concurring in all but footnote 4

of the majority and concurring in the judgment:

While I concur with the opinion, I would follow the First,

Second, and Tenth Circuits and adopt a bright line rule

against jurisdiction here. See Fisichelli v. City Known as

4

There might arise a case where, for example, intervening law

between a denial of qualified immunity and a denial of reconsideration

renders the collateral order doctrine applicable to the latter. This,

however, is not that case. The Supreme Court in City of Escondido

simply reiterated what it had “explained many times” before. See City of

Escondido, 139 S. Ct. at 503 (citing Kisela v. Hughes, 138 S. Ct. 1148,

1152 (2018) (per curiam); District of Columbia v. Wesby, 138 S. Ct. 577,

593 (2018); White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam);

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)).

10 HANSON V. SHUBERT

Town of Methuen, 884 F.2d 17, 18–19 (1st Cir. 1989); Lora

v. O’Heaney, 602 F.3d 106, 111–12 (2d Cir. 2010); Powell

v. Miller, 849 F.3d 1286, 1288–89 (10th Cir. 2017). This

would be the most faithful application of the collateral-order

doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 524 (1985).

Accordingly, I do not join footnote 4.