UNITEDSTATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DAVID HAAS; WILLIAM LEEGREGORY,

Plaintiffs - Appellees,

v.

TULSA POLICE DEPARTMENT, exrel. CITY OF TULSA,

Defendant,

and

DAVID R. CROW; STEVEN K.MIDDLETON; DONALD R.DERAMUS; DAVID KNUDSON;SUE KRUSE,

Defendants - Appellants.No. 02-5043

D.C. No. 00-CV-928-EA

(N.D. Oklahoma)

ORDER AND JUDGMENT(*)

Before HENRY, BRISCOE, andMURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determinedunanimously to grant the parties' request for a decision on the briefs without oralargument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is thereforeordered submitted without oral argument.

Defendants-appellants, officers with the Tulsa Police Department, appealfrom a district court order denying in part their motion for summary judgment onthe ground of qualified immunity. Plaintiffs-appellees, the owner and clerk of astore selling adult media in Tulsa, asserted many federal and state claims againstthe officers and the city in connection with an arrest and associated seizure ofmaterials at the store pursuant to a state obscenity law. The district court grantedsummary judgment against plaintiffs on all claims alleged against the city and onmost claims alleged against the officers. Plaintiffs moved for reconsideration ofthat ruling, and their motion remains pending. The district court also, however,rejected the officers' assertion of qualified immunity as to plaintiffs' claims underthe First and Fourth Amendments for improper seizure of constitutionallyprotected materials. It is that aspect of the district court's order for which theofficers now seek review. We conclude we lack appellate jurisdiction under therule of Mitchell v. Forsyth, 472 U.S. 511 (1985) and its progeny. We thereforedismiss the appeal.

Before considering whether the substance of the officers' appeal qualifiesfor interlocutory review under Mitchell, however, we note that plaintiffs have alsoraised the possibility of a threshold procedural impediment to our jurisdiction.Specifically, they contend their pending motion for reconsideration falls withinthe scope of Fed. R. Civ. P. 59, thereby triggering the tolling provisions ofFed. R. App. P. 4(a)(4) and, hence, forestalling appellate jurisdiction untilthemotion is resolved.

The officers argue plaintiffs' motion has no tolling effect because (1) it wasfiled after the notice of appeal and (2) it relates to claims, resolved adversely toplaintiffs, distinct from the matters raised on this appeal. Neither point isavailing. The Supreme Court held some time ago, based on language in Rule 4(a)that remains unchanged, that the Rule gave the district court "express authority toentertain a timely motion . . . under Rule 59, even after a notice of appealhadbeen filed." Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 59 (1982);seeStone v. INS, 514 U.S. 386, 396 (1995) (indicating continuing vitality ofGriggsanalysis). The same section of Rule 4, stating that "[i]f a party timely files [aRule 59 motion] . . . the time to file an appeal runs for all parties from the entryof the order disposing of the last such remaining motion," Rule 4(a)(4)(A), alsoindicates that the tolling consequences of a Rule 59 motion apply regardless ofwhether the motion was filed by a party other than the appellant or was directedto a part of the judgment not adverse to the appellant and, thus, distinct from thematters for which the appellant seeks review. See, e.g., Diaz v. Romer,961 F.2d1508, 1510 (10th Cir. 1992); F.E.L. Publ'ns., Ltd. v. Catholic Bishop of Chicago,739 F.2d 284, 284-85 (7th Cir. 1984).

There is, however, a different reason why plaintiffs' motion does not affectour jurisdiction. The district court's order granting summary judgment againstplaintiffs in some respects and denying it in others was not a final judgment. SeeAnderson v. Deere & Co., 852 F.2d 1244, 1246 (10th Cir. 1988) (applyingFed. R. Civ. P. 54(b)). Thus, plaintiffs' purported Rule 59 motionwas, in reality,"nothing more than an interlocutory motion invoking the district court's generaldiscretionary authority to review and revise interlocutory rulings prior to entry offinal judgment, and, as such, did not call into play the timing and tollingconsiderations attendant upon [Rule 59] motions." Wagoner v. Wagoner,938 F.2d 1120, 1122 n.1 (10th Cir. 1991); see Walker v. United Parcel Serv.,Inc.,240 F.3d 1268, 1272 (10th Cir. 2001). Hence, plaintiffs' motion forreconsideration of those aspects of the district court's order resolved adversely tothem does not impede the officers' separate effort to obtain appellate review ofthe district court's denial of their qualified immunity defense with respect toplaintiffs' First and Fourth Amendment claims.

We turn, then, to the question whether the district court's rejection of theofficers' qualified immunity defense is, in substance, an appealable interlocutorydecision. We must inquire whether the ruling was a "purely legal determinationfit for [interlocutory] appellate resolution," or just a factual determination thatplaintiffs "ha[ve] presented evidence sufficient to survive summary judgment"and, thus, not fit for immediate review. Garrett v. Stratman, 254 F.3d 946, 952&n.8 (10th Cir. 2001) (quotations omitted) (applying Mitchell and Johnson v.Jones, 515 U.S. 304 (1995)). On its face, the district court's holding that theofficers had "fail[ed] to satisfy their burden of showing that no genuine issues ofmaterial fact exist and that they are entitled to judgment as a matter of law" on thepertinent claims, Aplts. App. Vol. II at 537, 544, certainly appears to fall withinthe non-appealable category.

Notwithstanding that generic reference to Rule 59 evidentiary standards,however, interlocutory jurisdiction could still be appropriate if the availability ofqualified immunity nevertheless ultimately turned on a distinct question of law.Gross v. Pirtle, 245 F.3d 1151, 1156-58 (10th Cir. 2001). However, a review ofthe case materials confirms that the rejection of qualified immunity here clearlyrested on the issue of evidentiary sufficiency, and "we are without jurisdiction toscrutinize the district court's conclusion beyond taking that quick look." Garrett,254 F.3d at 956; see Gross, 245 F.3d at 1157-58. The officers arguedthat theyhad relied on legal advice from the district attorney's office in seizing plaintiffs'materials and, consequently, were entitled to qualified immunity regardless of theimpropriety of their actions, citing the "extraordinary circumstances" doctrinediscussed in Hollingsworth v. Hill, 110 F.3d 733, 740-41 (10th Cir. 1997).Specifically referring to the factual conditions for application of this doctrine, thedistrict court held summary judgment was inappropriate because of the presenceof "genuine issues of material fact as to what advice was given by the attorneys,whether it was unequivocal and specifically tailored to the facts, whethercomplete information was provided to the advising attorneys, the competence ofthe attorneys, and how soon after the advice was received action was taken."Aplts. App. Vol. II at 536-37. The points identified by the district court involvematerial issues of fact rooted in the evidentiary record, and "we are withoutjurisdiction to delve further into the record to 'assess[] . . . the districtcourt'sevidentiary conclusions.'" Garrett, 254 F.3d at 955 (quoting Gross, 245F.3d at1157-58 (emphasis added)).

The officers try to manufacture an abstract issue of law for review, bysuggesting that the district court rejected their qualified immunity defense onlybecause they failed to present direct testimony from those whose legal advice theyrelied on in seizing plaintiffs' materials. At the outset of their brief, they framethe issue for review as follows: "Is a police officer asserting the 'exceptionalcircumstances' qualified immunity exception required to present the testimony ofthe judge or attorney the officer relied upon[?]" Aplts. Br. at 1. But one searchesthe rest of their brief in vain for a developed argument focused on this legal point.Instead, the brief goes on to address precisely the sufficiency-of-the-evidenceissue we lack jurisdiction to reach. See id. at 12-15. Indeed, it couldhardly dootherwise. As the quoted passage from the district court's order plainly shows,the denial of the officers' motion for summary judgment turned on theinconclusive substance, not the testimonial source, of the evidence relating to theextraordinary-circumstances exception.

The appeal is DISMISSED.

Entered for the Court

Michael R. Murphy

Circuit Judge

FOOTNOTES

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*. This order and judgment is not bindingprecedent, except under thedoctrines of law of the case, res judicata, and collateral estoppel. The courtgenerally disfavors the citation of orders and judgments; nevertheless, an orderand judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.