                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         FEB 5 2003
                          FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    DAVID HAAS; WILLIAM LEE
    GREGORY,

             Plaintiffs - Appellees,

    v.

    TULSA POLICE DEPARTMENT, ex                        No. 02-5043
    rel. CITY OF TULSA,                           D.C. No. 00-CV-928-EA
                                                     (N.D. Oklahoma)
             Defendant,

    and

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

             Defendants - Appellants.


                          ORDER AND JUDGMENT            *




Before HENRY , BRISCOE , and MURPHY , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the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.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Defendants-appellants, officers with the Tulsa Police Department, appeal

from a district court order denying in part their motion for summary judgment on

the ground of qualified immunity. Plaintiffs-appellees, the owner and clerk of a

store selling adult media in Tulsa, asserted many federal and state claims against

the officers and the city in connection with an arrest and associated seizure of

materials at the store pursuant to a state obscenity law. The district court granted

summary judgment against plaintiffs on all claims alleged against the city and on

most claims alleged against the officers. Plaintiffs moved for reconsideration of

that ruling, and their motion remains pending. The district court also, however,

rejected the officers’ assertion of qualified immunity as to plaintiffs’ claims under

the First and Fourth Amendments for improper seizure of constitutionally

protected materials. It is that aspect of the district court’s order for which the

officers now seek review. We conclude we lack appellate jurisdiction under the

rule of Mitchell v. Forsyth , 472 U.S. 511 (1985) and its progeny. We therefore

dismiss the appeal.




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       Before considering whether the substance of the officers’ appeal qualifies

for interlocutory review under   Mitchell , however, we note that plaintiffs have also

raised the possibility of a threshold procedural impediment to our jurisdiction.

Specifically, they contend their pending motion for reconsideration falls within

the scope of Fed. R. Civ. P. 59, thereby triggering the tolling provisions of

Fed. R. App. P. 4(a)(4) and, hence, forestalling appellate jurisdiction until the

motion is resolved.

       The officers argue plaintiffs’ motion has no tolling effect because (1) it was

filed after the notice of appeal and (2) it relates to claims, resolved adversely to

plaintiffs, distinct from the matters raised on this appeal. Neither point is

availing. 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 to

entertain a timely motion . . . under Rule 59, even after a notice of appeal had

been filed.” Griggs v. Provident Consumer Disc. Co.       , 459 U.S. 56, 59 (1982); s ee

Stone v. INS , 514 U.S. 386, 396 (1995) (indicating continuing vitality of    Griggs

analysis). The same section of Rule 4, stating that “[i]f a party timely files [a

Rule 59 motion] . . . the time to file an appeal runs for all parties from the entry

of the order disposing of the last such remaining motion,” Rule 4(a)(4)(A), also

indicates that the tolling consequences of a Rule 59 motion apply regardless of

whether the motion was filed by a party other than the appellant or was directed


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to a part of the judgment not adverse to the appellant and, thus, distinct from the

matters for which the appellant seeks review.      See, e.g. , Diaz v. Romer , 961 F.2d

1508, 1510 (10 th Cir. 1992); F.E.L. Publ’ns., Ltd. v. Catholic Bishop of Chicago         ,

739 F.2d 284, 284-85 (7 th Cir. 1984).

       There is, however, a different reason why plaintiffs’ motion does not affect

our jurisdiction. The district court’s order granting summary judgment against

plaintiffs in some respects and denying it in others was not a final judgment.       See

Anderson v. Deere & Co. , 852 F.2d 1244, 1246 (10 th Cir. 1988) (applying

Fed. R. Civ. P. 54(b)). Thus, plaintiffs’ purported Rule 59 motion was, in reality,

“nothing more than an interlocutory motion invoking the district court’s general

discretionary authority to review and revise interlocutory rulings prior to entry of

final judgment, and, as such, did not call into play the timing and tolling

considerations attendant upon [Rule 59] motions.”        Wagoner v. Wagoner ,

938 F.2d 1120, 1122 n.1 (10    th Cir. 1991); see Walker v. United Parcel Serv., Inc.         ,

240 F.3d 1268, 1272 (10 th Cir. 2001). Hence, plaintiffs’ motion for

reconsideration of those aspects of the district court’s order resolved adversely to

them does not impede the officers’ separate effort to obtain appellate review of

the district court’s denial of their qualified immunity defense with respect to

plaintiffs’ First and Fourth Amendment claims.




                                            -4-
       We turn, then, to the question whether the district court’s rejection of the

officers’ qualified immunity defense is, in substance, an appealable interlocutory

decision. We must inquire whether the ruling was a “purely legal determination

fit for [interlocutory] appellate resolution,” or just a factual determination that

plaintiffs “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 (10 th Cir. 2001) (quotations omitted) (applying     Mitchell and Johnson v.

Jones , 515 U.S. 304 (1995)). On its face, the district court’s holding that the

officers had “fail[ed] to satisfy their burden of showing that no genuine issues of

material fact exist and that they are entitled to judgment as a matter of law” on

the pertinent claims, Aplts. App. Vol. II at 537, 544, certainly appears to fall

within the non-appealable category.

       Notwithstanding that generic reference to Rule 59 evidentiary standards,

however, interlocutory jurisdiction could still be appropriate if the availability of

qualified immunity nevertheless ultimately turned on a distinct question of law.

Gross v. Pirtle , 245 F.3d 1151, 1156-58 (10      th Cir. 2001). However, a review of

the case materials confirms that the rejection of qualified immunity here clearly

rested on the issue of evidentiary sufficiency, and “we are without jurisdiction to

scrutinize 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 argued that they


                                            -5-
had relied on legal advice from the district attorney’s office in seizing plaintiffs’

materials and, consequently, were entitled to qualified immunity regardless of the

impropriety of their actions, citing the “extraordinary circumstances” doctrine

discussed in Hollingsworth v. Hill , 110 F.3d 733, 740-41 (10 th Cir. 1997).

Specifically referring to the factual conditions for application of this doctrine, the

district court held summary judgment was inappropriate because of the presence

of “genuine issues of material fact as to what advice was given by the attorneys,

whether it was unequivocal and specifically tailored to the facts, whether

complete information was provided to the advising attorneys, the competence of

the 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 involve

material issues of fact rooted in the evidentiary record, and “we are without

jurisdiction to delve further into the record to ‘   assess [] . . . the district court’s

evidentiary conclusions.’”      Garrett , 254 F.3d at 955 (quoting    Gross , 245 F.3d at

1157-58 (emphasis added)).

       The officers try to manufacture an abstract issue of law for review, by

suggesting that the district court rejected their qualified immunity defense only

because they failed to present direct testimony from those whose legal advice they

relied on in seizing plaintiffs’ materials. At the outset of their brief, they frame

the issue for review as follows: “Is a police officer asserting the ‘exceptional


                                              -6-
circumstances’ qualified immunity exception required to present the testimony of

the judge or attorney the officer relied upon[?]” Aplts. Br. at 1. But one searches

the 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-evidence

issue we lack jurisdiction to reach.   See id. at 12-15. Indeed, it could hardly do

otherwise. As the quoted passage from the district court’s order plainly shows,

the denial of the officers’ motion for summary judgment turned on the

inconclusive substance, not the testimonial source, of the evidence relating to the

extraordinary-circumstances exception.

       The appeal is DISMISSED.



                                                      Entered for the Court



                                                      Michael R. Murphy
                                                      Circuit Judge




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