                                                                   F I L E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                                      JAN 26 2005
                               TENTH CIRCUIT
                                                               PATRICK FISHER
                                                                         Clerk

ALFRED MILTON EVANS, an individual;
SOUTHEASTERN OKLAHOMA FAMILY
SERVICES, INC., a corporation,

             Plaintiffs-Appellees,
      v.

MIKE FOGARTY, in his individual capacity,               No. 04-6007
as well as in his official capacity as Chief
Executive Officer for the Oklahoma Health             (W.D. Oklahoma)
Care Authority; TERRIE FRITZ, in her
individual capacity, as well as in her official    (D.C. No. 01-CV-252-H)
capacity as Director of Behavioral Health for
the Oklahoma Health Care Authority; DANA
BROWN, in her individual capacity, as well as
in her official capacity as Legislative Liaison
from the Oklahoma Health Care Authority,

             Defendants-Appellants,

      and

DR. LYNN MITCHELL, in his individual
capacity, as well as in his official capacity as
State Medicaid Director for the Oklahoma
Health Care Authority; T.J. BRICKNER, JR.,
in his official capacity as Vice-Chairman for
the Oklahoma Health Care Authority;
RONALD ROUNDS, O.D., in his official
capacity as member of the Oklahoma Health
Care Authority Board of Directors; WAYNE
HOFFMAN, in his official capacity as member
of the Oklahoma Health Care Authority Board
of Directors; JERRY HUMBLE, in his official
capacity as member of the Oklahoma Health
 Care Authority Board of Directors; CHARLES
 ED McFALL, in his official capacity as
 Chairman of the Oklahoma Health Care
 Authority Board of Directors; GEORGE
 MILLER, in his official capacity as member of
 the Oklahoma Health Care Authority Board of
 Directors; LYLE ROGGOW, in his official
 capacity as member of the Oklahoma Health
 Care Authority Board of Directors,

              Defendants.


                            ORDER AND JUDGMENT          *




Before KELLY , ANDERSON , and O’BRIEN , Circuit Judges.




      Defendants Mike Fogarty, Terrie Fritz and Dana Brown, employees of the

Oklahoma Health Care Authority (“OHCA”), seek an interlocutory appeal of the

district court’s order denying their request to file a third motion for summary

judgment asserting that they are entitled to qualified immunity from plaintiffs’ 42

U.S.C. § 1983 lawsuit. For the reasons that follow, we conclude we lack

jurisdiction over this appeal and dismiss it.


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


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      Plaintiffs, Alfred Milton Evans, the Southeastern Oklahoma Family

Services, Inc. (“SOFS”), providers of mental health care in southeastern

Oklahoma, as well as some SOFS patients, brought this § 1983 action against

defendants and others,   1
                             alleging, inter alia , that their First Amendment rights

were violated when defendants retaliated against them for speaking publicly about

various issues affecting Oklahoma’s Medicaid system.

      The resolution of this appeal requires a general understanding of the

lengthy history of this litigation: Plaintiffs initially successfully obtained a

preliminary injunction against defendants barring them from continuing to violate

plaintiffs’ constitutional rights. Defendants first raised the defense of qualified

immunity in their answer to plaintiffs’ third amended complaint. Appellants’

App. at 56-63. They then filed a motion to dismiss based on qualified immunity.

Appellees’ App. to Mot. to Dismiss at tab 3. The district court denied

defendants’ motion to dismiss and defendants did not attempt to appeal.

      Defendants then filed a motion for summary judgment on various grounds

with no mention of a defense of qualified immunity. They subsequently withdrew

the motion. Defendants thereafter filed eight further separate motions for

summary judgment against plaintiffs. None of those motions raised the defense



      1
       The remaining defendants were all connected to OHCA in various
capacities.

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of qualified immunity either. The court denied these motions and defendants did

not attempt an appeal.

      The parties subsequently filed a joint pretrial report which also failed to

raise a defense of qualified immunity. A five-day trial in April 2003 resulted in a

jury verdict in favor of plaintiffs. Defendants did not raise the issue of qualified

immunity in any of their trial or post-trial motions.

      However, for reasons not relevant here, the district court later granted

defendants’ motion for a new trial. Prior to this second trial, defendants sought

permission from the district court to file yet another motion for summary

judgment seeking to raise specifically the defense of qualified immunity. The

district court denied the request, stating as follows:

             To the extent defendants seek leave to assert a qualified
      immunity defense by summary judgment motions to be filed, their
      motion is DENIED. This case has already gone to trial once. The
      pretrial order entered in the case did not preserve or assert the
      defense of qualified immunity. While a second trial need not
      necessarily involve the same witnesses and proof, the Court
      concludes it is inappropriate, in the circumstances of this case, to
      permit defendants to raise new and different legal issues or defenses
      not at issue in the first trial.

Order, Appellees’ App. to Mot. to Dismiss at tab 11.

      Defendants seek to effect an appeal of that order denying them permission

to file another motion for summary judgment asserting the defense of qualified

immunity. They argue the order is tantamount to a final decision denying them


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the defense of qualified immunity and, as such, is appealable on an interlocutory

basis under Mitchell v. Forsyth , 472 U.S. 511 (1985).

       Meanwhile, the case has been fully tried to a conclusion for the second

time, resulting again in a jury verdict adverse to defendants. In the second trial,

as both parties concede, defendants were able to raise a defense of qualified

immunity. Indeed, they concede that the issue was included in the pretrial order

and was the subject of extensive Fed. R. Civ. P. 50 written submissions, which

apparently remain pending before the district court.    2



       Plaintiffs seek dismissal of this appeal for lack of appellate jurisdiction.

We agree with plaintiffs. While the denial of qualified immunity can be an

appealable collateral order,   see Digital Equip. Corp. v. Desktop Direct, Inc.   , 511

U.S. 863, 867 (1994);    Mitchell , 472 U.S. at 526, the district court’s order in this

case did not address any qualified immunity issue. It was simply a pretrial order

denying defendants’ request to file a motion.      See Edwards v. Cass County , 919

F.2d 273 (5th Cir. 1990). Defendants will have a full opportunity to address any

properly preserved qualified immunity issue on appeal from the adverse jury

verdict reached in, and any adverse post-trial rulings with respect to, the second



       2
        Although the defendants sought to effect this interlocutory appeal prior to
the conclusion of the second trial, we permitted the trial to proceed based upon
the district court’s certification that the appeal was frivolous and not taken in
good faith.

                                            -5-
trial. Defendants’ assertion that they are somehow prejudiced by our refusal to

hear this interlocutory appeal because they will otherwise be required to post a

bond in order to gain review of their qualified immunity defense is unavailing. It

does not transform an otherwise unappealable order into an appealable one, and it

does not serve the core purpose for an interlocutory appeal set out in   Mitchell .

To the contrary, any remand for proceedings on the summary judgment motion at

this late date will add both delay and expense, and, at best, probably only

postpone the time when an appeal bond will have to be posted. Thus, as a

practical matter, the attempted appeal is effectively moot.

       Accordingly, in the peculiar circumstances of this case, we lack jurisdiction

to review on an interlocutory basis the district court’s order denying defendants

permission to file a motion for summary judgment. Appeal DISMISSED.

                                                  ENTERED FOR THE COURT


                                                  Stephen H. Anderson
                                                  Circuit Judge




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