                                                            F I L E D
                                                      United States Court of Appeals
                                                              Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                           January 12, 2007
                         FO R TH E TENTH CIRCUIT         Elisabeth A. Shumaker
                                                             Clerk of Court



TR AN SITO TR UJILLO ,

           Plaintiff-Appellee,

v.                                              No. 05-2305
                                           (D.C. No. CIV-02-1146)
B OA RD O F ED U CA TIO N O F THE                 (D . N.M .)
ALBUQUERQUE PUBLIC
SCHOOLS; JOSEPH VIGIL and
SUSIE PECK, Albuquerque Public
Schools Superintendents, individually
and in their official capacities;
ANTHONY GRIEGO, Principal,
Valley High School, in his
official and individual capacity,
BRUCE SM ITH, Valley High School
Assistant Principal, individually and in
his official capacity; RO NA LD
W ILLIAM S, Director of Certified
Staffing, Albuquerque Public Schools,
individually and in his official
capacity,

           Defendants,

     and

M ARK M AYERSTEIN, Valley High
School employee, in his official and
individual capacity,

           Defendant-Appellant.
                           OR D ER AND JUDGM ENT *


      Before T YM KOV IC H, A ND ER SO N, and BALDOCK , Circuit Judges.


      Defendant Lt. Col. M ark M ayerstein appeals from the district court’s order

denying his motion for summary judgment on the basis of qualified immunity on

plaintiff Transito Trujillo’s First A mendment retaliation claim.

                                  I. Jurisdiction

      W e must first address the basis for this court’s jurisdiction. A district

court’s denial of a defendant’s motion for summary judgment based on qualified

immunity is a collateral order for which interlocutory appeal is available if there

is a dispute concerning an abstract issue of law relating to qualified immunity.

See Behrens v. Pelletier, 516 U.S. 299, 313 (1996). The mere fact that the trial

court determines that there are genuine issues of material fact regarding qualified

immunity does not preclude appellate jurisdiction. See id. at 312-13; M edina v.

Cram, 252 F.3d 1124, 1130 (10th Cir. 2001).




*
       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.

                                         -2-
      Here, M ayerstein argues that the district court erred in denying him

qualified immunity because Trujillo’s speech, for which Trujillo was allegedly

retaliated against, is not protected by the First Amendment. In order to overcome

a qualified immunity defense, Trujillo, as a plaintiff, “must establish that the

defendant’s conduct violated a federal constitutional or statutory right that was

clearly established at the time of the conduct.” Hulen v. Yates, 322 F.3d 1229,

1237 (10th Cir. 2003) (per curiam). The main issue in M ayerstein’s appeal

challenges Trujillo’s ability to establish that M ayerstein’s conduct violated

Trujillo’s constitutional rights. The determination of whether speech is protected

by the First Amendment is a legal question. See id. at 1236. Accordingly, we

have jurisdiction to consider M ayerstein’s appeal.

      M ayerstein also asserts that the district court: (1) failed to apply the proper

standards to Trujillo’s motion for reconsideration; (2) erred by impliedly

permitting amendments to Trujillo’s claims and theories, in contravention of

Fed. R. Civ. P. Rules 15, 16, and 56; and (3) erred in assuming the role of

Trujillo’s advocate. These other issues on appeal do not fit neatly into the

category of “abstract issues of law,” Behrens, 516 U.S. at 313, but they also do

not involve challenges to the sufficiency of the evidence. “Once jurisdiction over

the abstract issue of law is established, the Court, in its discretion may exercise

pendent appellate jurisdiction to review other issues.” Garrett v. Stratman,

254 F.3d 946, 953 n.9 (10th Cir. 2001). To the extent that these other challenges

                                          -3-
would not fall within this court’s jurisdiction under Behrens, we exercise our

pendent jurisdiction to review these issues.

                                   II. Background

      Trujillo began working as an Aerospace Instructor (ASI) in the Air Force

Junior Reserve Officer Training Corps program (AFJRO TC) at Valley High

School in Albuquerque, New M exico, in 1991. The Board of Education for the

Albuquerque Public Schools (the APS B oard) hired M ayerstein in the spring of

2001 to replace Trujillo’s supervisor in the position of Senior ASI. Trujillo’s

wife, M ajor Lourdes Trujillo, had applied for the job as well and, after APS hired

M ayerstein, she filed a complaint with the Equal Employment Opportunity

Commission (EEOC) claiming national origin and sex discrimination. Trujillo

and M ayerstein began working together in October 2001. The relationship started

well, but it began to deteriorate in December 2001. By the spring of 2002, both

parties had been placed on administrative leave pending an investigation into their

cross-allegations of misconduct.

      Trujillo, through counsel, filed suit in September 2002 against M ayerstein

and the other named defendants, bringing claims under 42 U.S.C. § 1983,

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and other grounds.

The A PS Board and all of the individual defendants moved for sum mary

judgment.   Trujillo filed cross-motions for summary judgment against all of the

defendants. The district court held a hearing on January 9, 2004, on all pending

                                         -4-
motions. The district court stated at the hearing that it was going to grant

summary judgment in favor of all of the defendants and deny summary judgment

in favor of Trujillo. On M arch 29, Trujillo, now proceeding pro se, filed a Fed.

R. Civ. P. 60(b) M otion and Brief for Reconsideration based on the district

court’s indication that it would be granting summary judgment in favor of all of

the defendants. On September 17, the district court issued an order granting

summary judgment for all of the individual defendants, except M ayerstein.

      On M arch 30, 2005, the district court issued an order granting summary

judgment in favor of M ayerstein. On April 4, Trujillo filed a Rule 59(e) M otion

to A lter or A mend the Judgment, challenging the M arch 30, 2005 order. On

April 11, the district court entered summary judgment in favor of the APS Board.

On M ay 18, the district court denied Trujillo’s Rule 60(b) motion, which the court

construed as a motion for reconsideration because it was filed prior to final

judgment in the case. On September 2, the district court construed Trujillo’s R ule

59(e) motion as a motion for reconsideration and entered an order denying it in

part and granting it in part. 2 As a result of reconsidering its earlier decision, the

district court determined that M ayerstein w as no longer entitled to summary

judgment on Trujillo’s First Amendment retaliation claim. This interlocutory

appeal followed.



2
      The district court also denied three other motions for reconsideration filed
by Trujillo.

                                           -5-
                               III. Standards of Review

         W e review de novo legal questions such as the district court’s denial of

M ayerstein’s motion for summary judgment on the basis of qualified immunity,

see Hulen, 322 F.3d at 1236, and the district court’s decision not to apply the

Rule 59(e) or Rule 60(b) standards to Trujillo’s motion for reconsideration, see

generally D ang v. U NU M Life Ins. Co. of Am., 175 F.3d 1186, 1189 (10th Cir.

1999). W e review for abuse of discretion the district court’s decision to

impliedly permit amendment of Trujillo’s complaint, see Calderon v. Kan. Dep’t

of Soc. & Rehab. Servs., 181 F.3d 1180, 1187 (10th Cir. 1999), and the district

court’s decision to consider portions of the record that were not specifically

referenced by Trujillo in his motions, see Adler v. Wal-M art Stores, Inc., 144 F.3d

664, 672 (10th Cir. 1998); Downes v. Beach, 587 F.2d 469, 471-72 (10th Cir.

1978).

                                     IV. Discussion

         A. First Amendment Analysis

         M ayerstein argues that Trujillo failed to establish that any of his speech

was protected by the First Amendment. The district court concluded that Trujillo

had established that two areas of his speech were entitled to First Amendment

protection: speech regarding M ayerstein’s lack of Federal Aviation

Administration (FA A) certification and speech regarding M ayerstein’s alleged

abuse of students. M ayerstein asserts that the district court erred in analyzing

                                            -6-
whether Trujillo’s speech constituted an issue of public concern that warrants

First Amendment protection.

      After the district court issued its opinion, the Supreme Court decided

Garcetti v. Ceballos, 126 S. Ct. 1951, 1960 (2006), which modified prior First

Amendment jurisprudence by clarifying that when speech is part of a public

employee’s official duties, it is not made as a citizen and is not protected.

M ayerstein filed a notice of supplemental authority arguing that Garcetti offered

further support for his position that Trujillo’s speech was part of his official

duties and therefore it was not protected by the First Amendment. In his opening

brief, M ayerstein argued that “[t]he fact that M r. Trujillo spoke to comply with

APS regulations in the course of his official duties weighs against finding that his

speech involved a matter of public concern.” Aplt. Br. at 22 (citing Koch v. City

of Hutchinson, 847 F.2d 1436, 1445 (10th Cir. 1988)).

      Although we agree that the Garcetti decision must now be considered in the

First Amendment analysis, there are two problems with this argument that require

us to remand to the district court for further proceedings. The first problem is

that M ayerstein did not raise this argument before the district court. Generally

we do not consider new issues on appeal, but we do have the discretion to

consider new arguments based on “changes in governing law arising during the

pendency of the appeal.” Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1222

(10th Cir. 1996). Because the Garcetti decision was a change in the governing

                                          -7-
law, we could, in our discretion, consider this argument. The second problem,

however, is that the record before us does not contain sufficient evidence on

Trujillo’s official duties to perform the Garcetti analysis. Accordingly, we

remand this case for further fact-finding in light of the Supreme Court’s decision

in Garcetti. See, e.g., United States v. Novey, 922 F.2d 624, 629-30 (10th Cir.

1991), overruled on other grounds by United States v. Flowers, 464 F.3d 1127

(10th Cir. 2006).

      B. Standard for M otion for Reconsideration

      The district court determined that it had the general discretionary authority

to consider Trujillo’s Rule 59(e) motion to alter or amend the M arch 30, 2005

order, without applying the stricter Rule 59(e) standards because final judgment

had not yet entered in the case. 3 Although Trujillo captioned his motion as a Rule

59(e) motion, the district court construed it as a motion for reconsideration. This

is proper because the district court is not bound by a pro se litigant’s

characterization of available relief. See Roman-Nose v. N.M . Dep’t of Human

Servs., 967 F.2d 435, 437 (10th Cir. 1992).

      A district court has discretion to revise interlocutory orders prior to entry

of final judgment. Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005)



3
       Although M ayerstein argues that the district court erred in its treatment of
Trujillo’s motions for reconsideration, the only relevant motion is Trujillo’s R ule
59(e) motion to alter or amend the M arch 30, 2005 decision because the other
four motions were denied.

                                         -8-
(“[E]very order short of a final decree is subject to reopening at the discretion of

the district judge.”); Anderson v. Deere & Co., 852 F.2d 1244, 1246 (10th Cir.

1988) (citing Fed. R. Civ. P. 54(b)). M ayerstein asserts that, although final

judgment had not yet entered in the case, the district court’s discretion to revise

its interlocutory orders w as limited by the standards for review ing a post-

judgment motion filed pursuant to Rule 59(e) or 60(b) of the Federal Rules of

Civil Procedure. M ayerstein cites to several district court decisions to support his

position, but he cites to no Tenth Circuit authority. M oreover, he fails to mention

this court’s opinion in Raytheon Constructors Inc. v. ASARCO, Inc., 368 F.3d

1214, 1217 (10th Cir. 2003), which was relied upon by the district court for its

decision.

      In Raytheon, like this case, the plaintiff moved for reconsideration prior to

the entry of final judgment. The district court treated the motion as a Rule 60(b)

motion, even though it acknowledged that the plaintiff was seeking

reconsideration of an interlocutory order rather than a final judgment. Id. at

1216. W e concluded that “[t]he district court was incorrect to treat Raytheon’s

motion for reconsideration under Rule 60(b), which only applies to final orders or

judgments.” Id. at 1217. Similarly, in Wagoner v. Wagoner, 938 F.2d 1120, 1122

n.1 (10th Cir. 1991), we noted that a motion for reconsideration filed prior to

final judgment “was nothing more than an interlocutory motion invoking the

district court’s general discretionary authority to review and revise interlocutory

                                          -9-
rulings prior to entry of final judgment.” The district court therefore had the

general discretionary authority to review its M arch 30, 2005 order after Trujillo

filed his motion for reconsideration, and it was not bound by the stricter standards

for considering a Rule 59(e) or Rule 60(b) motion.

      M ayerstein also argues that the law of the case doctrine required the district

court to apply the more stringent requirements used for Rule 59(e) and Rule 60(b)

motions. “As most commonly defined, the [law of the case] doctrine posits that

when a court decides upon a rule of law, that decision should continue to govern

the same issues in subsequent stages in the same case.” Arizona v. California,

460 U.S. 605, 618 (1983). Because this case involves the district court’s

consideration of new facts and does not involve a change in the district court’s

application of any rule of law, the law of the case doctrine is not applicable. See

generally M ajor v. Benton, 647 F.2d 110, 111-12 (10th Cir. 1981) (discussing

application of law of the case doctrine to district court’s decision to reverse a

prior interlocutory order and reach different conclusions of law). Although the

district court stated at the beginning of its September 2 decision that, in addition

to new facts that were presented by Trujillo, “[b]ecause the [Tenth Circuit] has

recently decided an opinion that suggests a low er threshold for showing adverse

action in First Amendment caselaw . . . the C ourt will withdraw its summary

judgment on the First Amendment retaliation claim.” Aplt. App. at 588, the

remainder of the opinion makes clear that the district court’s self-reversal is based

                                         -10-
solely on the consideration of new facts, see, e.g., id. at 593-96, 599. The district

court reversed itself because it concluded that Trujillo’s newly highlighted facts

created a genuine issue of material fact that M ayerstein retaliated against Trujillo

for speaking out about M ayerstein’s lack of FA A certification and about

M ayerstein’s allegedly abusive treatment of the students. The district court’s

decision did not alter any previously announced rule of law on the adverse action

issue. The district court continued to conclude, as it did in its M arch 30 order,

that the changes in Trujillo’s office location, work hours, and chain of command

constituted adverse actions. See id. at 471, 597, 599.

      Because we conclude that the district court did not err in failing to apply

the standards for Rule 59(e) and Rule 60(b) motions to Trujillo’s motion for

reconsideration, we do not need to reach M ayerstein’s argument that applying

those standards would have resulted in a denial of that motion.

      C. Federal Rules of Civil Procedure 15, 16, and 56

      M ayerstein next argues that the district court’s treatment of Trujillo’s

motions for reconsideration evidenced other procedural errors under Rules 15, 16,

and 56 of the Federal Rules of Civil Procedure. M ayerstein asserts that the

district court allowed Trujillo to impliedly amend his complaint to include

allegations that Trujillo w as retaliated against for his own speech on the FAA

certification issue and that Trujillo’s retaliation claim stemmed from the adverse

actions of relocating his office, altering his w ork schedule, and removing him

                                         -11-
from the chain of command. W e note that M ayerstein failed to raise this

argument before the district court.

      M ayerstein acknowledges that Trujillo was attempting to alter the theory of

his case when Trujillo filed his first Rule 60(b) motion after the motions hearing.

See Aplt. Br. at 33. Despite being on notice of the change in Trujillo’s approach

to the case, however, M ayerstein did not argue in his response to Trujillo’s

motions for reconsideration that Trujillo was attempting to impliedly amend his

complaint and that any consideration of these allegations by the district court

would be improper under Rules 15, 16, and 56. Rather, M ayerstein’s arguments

were based on the application of the standards for deciding Rule 59(e) and

Rule 60(b) motions and how applying those standards should result in denial of

the motions for reconsideration. See, e.g., Aplt. A pp. at 398-401, 514-16.

Because we see no reason to depart from the general rule that we do not consider

arguments raised for the first time on appeal, we decline to address this argument.

See Hill v. Kan. Gas Serv. Co., 323 F.3d 858, 865-66 (10th Cir. 2003).

      D. Acting as an Advocate

      As his last issue, M ayerstein argues that the district court improperly

assumed the role of Trujillo’s advocate. This argument is based on the district

court’s decision to rely in part on a portion of the record that was not referenced

by Trujillo regarding the fact that Trujillo spoke directly to M ayerstein about the

FAA certification issue. See Aplt. App. at 596-97. This record evidence w as also

                                         -12-
relied on during the causation section of the district court’s analysis. See id. at

597-98.

      “A district court abuses its discretion when it renders an arbitrary,

capricious, whimsical, or manifestly unreasonable judgement.” Coletti v. Cudd

Pressure Control, 165 F.3d 767, 777 (10th Cir. 1999) (quotation omitted).

A district court has discretion to go beyond the referenced portions of the

summary judgment materials provided by the parties. Adler v. Wal-M art, Inc.,

144 F.3d 664, 672 (10th Cir. 1998); Downes v. Beach, 587 F.2d 469, 471-72

(10th Cir. 1978). M ayerstein has not demonstrated that the district court’s

decision to do so in this instance constituted an abuse of that discretion.

                                   V. Conclusion

      The district court’s decision is AFFIRM ED with respect to the district

court’s treatment of Trujillo’s motion for reconsideration. The case is

REM ANDED to the district court for further fact-finding consistent with this

opinion. Appellee’s motion to file a surreply filed December 12, 2005, is denied.



                                                      Entered for the Court



                                                      Stephen H. Anderson
                                                      Circuit Judge




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