                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


SCOTT HANSON,                           No. 19-35839
                 Plaintiff-Appellee,
                                           D.C. No.
                v.                      1:16-cv-00421-
                                             BLW
WILLIAM SHUBERT; JESUS
GONZALEZ,
           Defendants-Appellants,         OPINION

                and

BLAINE COUNTY; GOODING COUNTY;
JUDITH PETERSON; GENE D. RAMSEY;
SHAUN GOUGH; IDAHO DEPARTMENT
OF CORRECTION; KEVIN WAYT; JOHN
DOES, I–X,
                      Defendants.

     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

                 Filed August 4, 2020
2                      HANSON V. SHUBERT

    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 Federal Rules of Civil
Procedure 59(e) to alter or amend the judgment, rather than
pursuant to Rule 60(b).

    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 Rule 59(e) motion may

     *
     The Honorable Richard Seeborg, United States District Judge for
the Northern District of California, sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                     HANSON V. SHUBERT                         3

toll the appeals period, see Fed. R. App. P. 4(a)(4)(A)(iv),
the reconsideration motion here was filed nearly a year after
the underlying summary judgment order. The panel held that
the filing of an untimely motion will not toll the running of
the appeal period.

    The panel held that it lacked jurisdiction over the order
denying the Rule 59(e) motion for reconsideration, where it
did not have jurisdiction over the appeal of the underlying
order. The panel held that appellants could not use their
motion for reconsideration, filed nearly one year after the
underlying order, to resurrect their right to appeal the district
court’s order denying them qualified immunity.
Furthermore, appellants failed to make any showing that the
order denying their motion to reconsider was otherwise
immediately appealable. In footnote 4, the panel noted that
a case might arise, for example, where intervening law
between a denial of qualified immunity and a denial of
reconsideration renders the collateral order doctrine
applicable to the latter. This however, was not that case. The
panel declined to exercise discretion under Fed. R. App.
P. 38 to award the defendant/appellee attorney’s fees for this
appeal.

   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.
4                  HANSON V. SHUBERT

                        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.


                        OPINION

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
                         HANSON V. SHUBERT                                 5

in part found that Shubert and Gonzalez could not be
accorded qualified immunity as a matter of law, as genuine
factual disputes remained as to whether they violated
Hanson’s clearly established rights.

    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 Federal Rules of Civil
Procedure 59(e) and 60(b). 1 At oral argument, appellants
     1
       Rule 59(e) provides for a “motion to alter or amend a judgment”
within twenty-eight days of the underlying order. Fed. R. Civ. P. 59(e).
Rule 60(b) allows for “relief from a final judgment, order, or proceeding”
for any of six reasons: (1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that could not have been
discovered in time to move for a new trial; (3) fraud, misrepresentation,
or misconduct; (4) the judgment is void; (5) the judgment has been
satisfied; or (6) any other reason that justifies relief. A Rule 60(b) motion
must be made “within a reasonable time,” and for reasons (1), (2), and
(3), within no more than a year. Fed. R. Civ. P. 60(c)(1).
6                       HANSON V. SHUBERT

acknowledged that their motion for reconsideration was
brought under Rule 59(e) to alter or amend the judgment. We
hold this appeal is untimely and must be dismissed.

    Under Federal Rule of Appellate Procedure 4(a) and
28 U.S.C. § 2107(a), a notice of appeal must be filed within
thirty days of the entry of the judgment or underlying order
from which the appeal is taken. The thirty-day time limit is
“mandatory and jurisdictional.” Melendres v. Maricopa
Cnty., 815 F.3d 645, 649 (9th Cir. 2016) (internal citation
omitted). Failure to file a notice of appeal within the
applicable time limit must result in dismissal for lack of
jurisdiction. Id.

    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
Rule 59(e) motion may toll the appeals period, see Fed. R.
App. P. 4(a)(4)(A)(iv), the reconsideration motion here was
filed nearly a year after the underlying summary judgment
order. 2 “The filing of an untimely motion will not toll the

    2
      As noted, the district court did not discuss the timeliness of the
reconsideration motion. It instead stated that a “denial of a motion . . .
for summary judgment may be reconsidered at any time before final
judgment,” citing Preaseau v. Prudential Insurance Co., 591 F.2d 74,
79–80 (9th Cir. 1979). Preaseau, however, only states that “an order
denying a motion for summary judgment is generally interlocutory and
‘subject to reconsideration by the court at any time,’” id. (quoting Dessar
v. Bank of Am. Nat’l Tr. and Sav. Ass’n, 353 F.2d 468, 470 (9th Cir.
1965)), such that “a subsequent motion for summary judgment may be
made and granted,” id. at 80 n.4. That an order is “subject to
reconsideration” at any time does not imply that a motion for
reconsideration may be filed at any time, especially when the Federal
Rules of Civil Procedure advise otherwise. Nevertheless, Hanson did not
contest the timeliness of the reconsideration motion in the district court
                        HANSON V. SHUBERT                                 7

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 28 U.S.C. § 1291 notwithstanding the absence of a final
judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
Neither the Supreme Court nor this court, however, has
addressed the situation here: the appeal of an order denying
a motion to reconsider the earlier denial of qualified
immunity, which had not itself been timely appealed.

   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

and therefore waived the issue. See In re Onecast Media, Inc., 439 F.3d
558, 562 (9th Cir. 2006).
    3
      Considering the reconsideration motion under Rule 60(b) would
not save the appeal, because a Rule 60 motion only tolls the appeals
period if it “is filed no later than 28 days after the judgment is entered.”
Fed. R. App. P. 4(a)(4)(A)(vi).
8                   HANSON V. SHUBERT

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
                       HANSON V. SHUBERT                              9

Rule 59(e) motion for reconsideration of a denial of qualified
immunity, where we do not have jurisdiction over the appeal
of the underlying order. Shubert and Gonzalez “cannot use
[their] motion for reconsideration,” filed nearly one year
after the underlying order, “to resurrect [their] right to appeal
the district court’s order denying [them] qualified
immunity.” Powell, 849 F.3d at 1289. Furthermore, they
have “failed to make any showing that the order denying
[their] motion to reconsider is otherwise immediately
appealable.” Id. 4

   Based on the foregoing, we must dismiss this appeal
because we lack jurisdiction. Furthermore, we decline to
exercise our discretion under Fed. R. App. P. 38 to award
Hanson attorney’s fees for this appeal.

    APPEAL DISMISSED.



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

    4
      There might arise a case where, for example, intervening law
between a denial of qualified immunity and a denial of reconsideration
renders the collateral order doctrine applicable to the latter. This,
however, is not that case. The Supreme Court in City of Escondido
simply reiterated what it had “explained many times” before. See City of
Escondido, 139 S. Ct. at 503 (citing Kisela v. Hughes, 138 S. Ct. 1148,
1152 (2018) (per curiam); District of Columbia v. Wesby, 138 S. Ct. 577,
593 (2018); White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam);
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)).
10                  HANSON V. SHUBERT

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.
