                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                      December 18, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
JOHN F. SINGER, an individual,

             Plaintiff - Appellee,

v.                                                         No. 14-5020
                                              (D.C. No. 4:13-CV-00072-GKF-TLW)
JANICE STEIDLEY; M. BRYCE LAIR,                            (N.D. Okla.)

             Defendants - Appellants.


                            ORDER AND JUDGMENT*


Before KELLY, ANDERSON, and TYMKOVICH, Circuit Judges.


      Defendants Janice Steidley and M. Bryce Lair appeal from the district court’s

order denying in part their motion for summary judgment concerning plaintiff John F.

Singer’s 42 U.S.C. § 1983 civil rights complaint. Because we lack jurisdiction over

this interlocutory appeal, we dismiss the appeal.




*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                  BACKGROUND

      In his complaint, Mr. Singer alleged that he was an investigator for the

Claremore Police Department, Ms. Steidley was an Oklahoma district attorney and

Mr. Lair was an assistant district attorney who worked for Ms. Steidley. In

retaliation for Mr. Singer’s criticism of Ms. Steidley and Mr. Lair, they allegedly

manufactured evidence that Mr. Singer had acted improperly during his investigation

of a sexual assault case. Ostensibly relying on their duties under Giglio v. United

States, 405 U.S. 150 (1972),1 they then communicated, distributed, or disclosed the

existence of this manufactured evidence to several persons or entities, including a

United States attorney; Mr. Singer’s superior at the Claremore Police Department;

the Chief of the Pryor Police Department; the criminal defense counsel in a Rogers

County District Court case; a friend of Mr. Lair who in turn disclosed its existence on

the Oklahoma Criminal Defense Lawyers Association (OCDLA) website; and a

Claremore newspaper. Mr. Singer alleged that these retaliatory actions had caused

significant, irreparable damage to his reputation and employment. He asserted claims

under § 1983 for First Amendment retaliation and for deprivation of his Fourteenth

Amendment rights. He also requested exemplary damages, declaratory judgment that




1
      Giglio requires the prosecution to disclose to a criminal defendant information
bearing on a witness’s credibility where that evidence may be material to the
defendant’s guilt or punishment. See United States v. Harmon, 742 F.3d 451, 459
(10th Cir. 2014) (discussing Giglio rule).


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the manufactured materials did not constitute Giglio material, and an injunction

against the defendants’ further dissemination of the materials.

      The defendants moved to dismiss the complaint, asserting among other

defenses absolute prosecutorial immunity concerning all claims and qualified

immunity concerning the Fourteenth Amendment claim. The district court dismissed

the complaint in part. It granted the defendants absolute prosecutorial immunity to

the extent Mr. Singer’s claims relied on disclosures of Giglio material to the United

States attorney and to defense counsel. It granted them qualified immunity on the

Fourteenth Amendment claim because it found the alleged liberty interest was not

clearly established. It also dismissed the claims for declaratory and injunctive relief.

The partial dismissal left intact Mr. Singer’s First Amendment retaliation claim based

on the disclosures to the Claremore and Pryor police chiefs, the defense attorney

website, and the Claremore newspaper; and his claim for exemplary damages.

      With the district court’s permission, Mr. Singer then filed a first amended

complaint. He reasserted his First Amendment retaliation and exemplary damages

claims and added state-law claims for defamation, libel and slander. The defendants

sought summary judgment on the amended complaint. In their motion, they did not

renew their arguments for absolute or qualified immunity. Instead, they contended

that summary judgment should be granted because they did not actually disclose the

Giglio materials to the police chiefs, the Claremore newspaper, or the Oklahoma




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Criminal Defenders’ website, and because Mr. Singer failed to establish the elements

of a First Amendment retaliation claim.2

      In its summary judgment order the district court did not discuss whether the

defendants were entitled to either absolute or qualified immunity. Rather, it

concluded that reasonable jurors could disagree concerning whether the defendants

had disclosed Giglio materials to the police chiefs and the newspaper.3 It further




2
       The defendants’ summary judgment briefs did contain some passing references
to immunity. They argued that they did not lose the absolute immunity connected
with the fulfillment of their duties under Giglio merely because third parties
disseminated the Giglio materials to the police chiefs, the newspaper, and the
website. The district court never reached this argument, because it found sufficient
evidence that it was the defendants themselves who disseminated the materials to the
police chiefs and the newspaper. We lack appellate jurisdiction to resolve a dispute
concerning this factual finding in a qualified immunity appeal. See Johnson v. Jones,
515 U.S. 304, 313 (1995) (holding district court’s determination that summary
judgment record raised genuine issue of fact concerning petitioners’ involvement in
unconstitutional conduct did not constitute appealable final decision). To the extent
we may reach factual issues in an appeal from the denial of absolute immunity, see
Malik v. Arapahoe Cnty. Dep’t of Soc. Servs., 191 F.3d 1306, 1313 (10th Cir. 1999)
(addressing factual issues in interlocutory appeal from denial of absolute immunity),
the defendants have not renewed their argument that absolute immunity is unaffected
by disclosures made only by third parties, and so that argument is not before us. See
Aplt. Br. in Chief at 20-24; Reply Br. at 6-9.
       In addition, the defendants argued that “all disclosures made were objectively
reasonable and are covered under either absolute or qualified immunity.” Aplt. App.
at 167. We do not read this argument as an assertion of immunity for their disclosure
of materials to others besides the United States attorney or defense counsel. In their
summary judgment brief, the defendants did not admit to making such disclosures.
In any event, the district court was not required to consider such a cursory and
conclusory argument in ruling on summary judgment.
3
      The district court determined that “no reasonable jury could conclude that
defendants provided Giglio material to the OCDLA or that [Mr. Lair’s friend] posted
                                                                          (continued)
                                         -4-
determined that Mr. Singer presented sufficient evidence to survive summary

judgment on the issues of whether he suffered a “chilling” injury and whether the

defendants’ actions were substantially motivated as a response to his constitutionally

protected conduct. Aplt. App., Vol. II at 616-19. Accordingly, it denied summary

judgment on the First Amendment retaliation claim.4

                                      DISCUSSION

       “Ordinarily, denials of summary judgment are not appealable final decisions

under 28 U.S.C. § 1291.” Leatherwood v. Welker, 757 F.3d 1115, 1117 (10th Cir.

2014), petition for cert. filed (U.S. Oct. 10, 2014) (No. 14-6767). “The denial of

summary judgment based on qualified immunity, however, is immediately appealable

to the extent it turns on abstract issues of law.” Id. at 1117-18. Similarly, the denial

of absolute immunity is an immediately appealable decision. Mitchell v. Forsyth,

472 U.S. 511, 525 (1985). An exception is made to § 1291’s finality requirement in

both cases, because “[t]he entitlement is an immunity from suit rather than a mere

defense to liability; and . . . is effectively lost if a case is erroneously permitted to go

to trial” and the district court’s decision denying immunity is therefore “effectively

unreviewable on appeal from a final judgment.” Id. at 526-27.




his comments about [Mr.] Singer on the OCDLA website at the request or direction
of [Mr.] Lair.” Aplt. App., Vol. II at 616.
4
      The district court granted summary judgment to the defendants on
Mr. Singer’s state-law claims.


                                            -5-
      But this exception to § 1291’s jurisdictional final order requirement depends

on a summary judgment decision that actually denies an absolute or qualified

immunity defense. See, e.g., Bines v. Kulaylat, 215 F.3d 381, 385-86 (3d Cir. 2000)

(dismissing for lack of appellate jurisdiction defendant’s interlocutory appeal from

denial of summary judgment; refusing to entertain qualified immunity argument

raised for first time on appeal). An interlocutory appeal may also of course be taken

from a decision that fails or refuses to decide a claim of immunity that has been

squarely presented to the district court. See Workman v. Jordan, 958 F.2d 332,

334-36 (10th Cir. 1992) (holding district court’s order postponing ruling on

defendants’ qualified immunity defense was immediately appealable). Here,

however, the defendants did not move for summary judgment based on either

absolute or qualified immunity and the district court did not address the immunity

issue in its summary judgment order. Accordingly, the “denial of immunity”

exception to § 1291’s final-order rule does not apply.

      Defendants argue, however, that the district court reached the qualified

immunity issue sua sponte when it cited an unpublished Tenth Circuit case, McCook

v. Springer Sch. Dist., 44 F. App’x 896 (10th Cir. 2002). But the district court did

not specify that it was making a qualified immunity ruling when it referred to

McCook. It noted that McCook had applied an objective reasonableness test “in the

context of a summary judgment motion based on qualified immunity.” Aplt. App.,

Vol. II at 618. It then applied the objective reasonableness test to the facts of this


                                          -6-
case. The district court nowhere conducted a qualified immunity analysis or

indicated that it was making a determination concerning the availability of qualified

immunity, a fact that defendants implicitly concede in their opening brief. See Aplt.

Br. in Chief at 26 (noting that district court “stopped short of applying . . .

[McCook’s] entire [qualified immunity] burden-shifting test.”). The issue the district

court considered and resolved, whether Mr. Singer sufficiently established the

elements of a claim for First Amendment retaliation, was relevant outside the

qualified immunity context, and that appears to be the gist of the district court’s

citation to McCook.

       Defendants also argue that we have discretion to reach the immunity issue for

the first time on appeal. Although as a general matter we have discretion to reach

issues presented for the first time on appeal, see, e.g., Braswell v. Cincinnati Inc.,

731 F.3d 1081, 1092-93 (10th Cir. 2013), defendants fail to persuade us that we may

exercise that discretion to create appellate jurisdiction where none otherwise exists.

This is not a case where our appellate jurisdiction is otherwise established and the

defendant incidentally seeks to raise an immunity defense for the first time on appeal.

Here, our appellate jurisdiction depends on the existence of a ruling denying absolute

or qualified immunity from which a timely appeal was taken. Because no such ruling

exists, this appeal must be dismissed.




                                           -7-
                                  CONCLUSION

      This appeal is dismissed for lack of appellate jurisdiction. We grant Valery O.

Giebel’s motion to withdraw as counsel for appellants.


                                              Entered for the Court


                                              Paul J. Kelly, Jr.
                                              Circuit Judge




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