SCOTT HANSON v. WILLIAM SHUBERT; JESUS GONZALEZ, and BLAINE COUNTY; GOODING COUNTY; JUDITH PETERSON; GENE D. RAMSEY; SHAUN GOUGH; IDAHO DEPARTMENT OF CORRECTION; KEVIN WAYT; JOHN DOES, I–X
No. 19-35839
United States Court of Appeals for the Ninth Circuit
August 4, 2020
D.C. No. 1:16-cv-00421-BLW. 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.
OPINION
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
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
The panel held that it lacked jurisdiction over the order denying the
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.
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.
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 in part found that Shubert and Gonzalez could not
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
acknowledged that their motion for reconsideration was brought under
Under
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
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
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 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
Based on the foregoing, we must dismiss this appeal because we lack jurisdiction. Furthermore, we decline to exercise our discretion under
APPEAL DISMISSED.
HANSON V. SHUBERT
No. 19-35839
United States Court of Appeals for the Ninth Circuit
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 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.