                                                                                  FILED
                                                                      United States Court of Appeals
                                       PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                       September 20, 2016

                                                                           Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                             Clerk of Court
                         _________________________________

REGINA WILLIAMS, individually and as
personal representative of the estate of
George Rouse, deceased,

      Plaintiff - Appellee,

v.                                                           No. 15-6146

MARVIN AKERS; FRANCIA
THOMPSON,

      Defendants - Appellants,

and

BOARD OF COUNTY
COMMISSIONERS OF GRADY
COUNTY; GRADY COUNTY
CRIMINAL JUSTICE AUTHORITY;
GRADY COUNTY INDUSTRIAL
AUTHORITY; ART KELL,

      Defendants.
                         _________________________________

                     Appeal from the United States District Court
                        for the Western District of Oklahoma
                             (D.C. No. 5:13-CV-00759-M)
                       _________________________________

Kari Y. Hawkins, Assistant Attorney General, Oklahoma Attorney General’s Office,
Litigation Section, Oklahoma City, Oklahoma, for Appellants.

D. Mitchell Garrett, Jr. (Amber Peckio Garrett, with him on the brief), Garrett Law
Center, Tulsa, Oklahoma, for Appellee.
                          _________________________________
Before GORSUCH, PHILLIPS, and MORITZ, Circuit Judges.
                  _________________________________

MORITZ, Circuit Judge.
                    _________________________________

      Oklahoma State Bureau of Investigation Agents Francia Thompson and

Marvin Akers (the defendants) ask us to reverse the district court’s order denying

their motion to reconsider its denial of their motion to dismiss. But the defendants

didn’t expressly designate that order in their notice of appeal. And we can’t fairly

infer an intent to appeal that order from any of the other relevant documents before

us. Accordingly, we dismiss the appeal for lack of jurisdiction.

                                      BACKGROUND

      George Rouse hanged himself shortly after the defendants transported him to

the Grady County Law Enforcement Center (GCLEC) for booking. Rouse’s mother,

Regina Williams, brought suit under 42 U.S.C. § 1983. She alleged the defendants

knew Rouse was suicidal when they delivered him to GCLEC but failed to inform

GCLEC’s booking staff of that fact.

      Asserting their entitlement to qualified immunity, the defendants moved to

dismiss Williams’ § 1983 claim. In an order dated October 8, 2014, the district court

denied the motion, concluding Williams’ complaint adequately alleged the

defendants violated Rouse’s clearly established constitutional rights under the

Fourteenth Amendment.

      The defendants could have immediately appealed the district court’s order

denying their motion to dismiss. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

                                           2
They didn’t. Nor did they immediately file a motion to alter or amend judgment, or a

motion seeking relief from judgment. They could have. See Fed. R. Civ. P. 59(e);

Fed. R. Civ. P. 60(b). Instead, nearly eight months later—after the United States

Supreme Court decided Taylor v. Barkes, 135 S. Ct. 2042 (2015)—the defendants

filed a motion to reconsider1 the district court’s denial of their motion to dismiss. In

an order dated July 31, 2015, the district court considered but denied that motion,

finding Barkes inapplicable to Williams’ claim.

      Four days later, the defendants filed a notice of appeal indicating they were

appealing the district court’s October 8, 2014 order denying their motion to dismiss.

But in their opening brief, the defendants instead ask us to review and reverse the

district court’s July 31, 2015 order denying their motion to reconsider. For the

reasons discussed below, we lack jurisdiction to grant that request.2




      1
         “The federal rules do not recognize a motion to reconsider. A litigant seeking
reconsideration must file a motion to alter or amend judgment pursuant to Fed. R.
Civ. P. 59(e), or a motion seeking relief from judgment under Fed. R. Civ. P. 60(b).”
Ysais v. Richardson, 603 F.3d 1175, 1178 n.2 (10th Cir. 2010). Here, the defendants
concede we must construe their motion to reconsider as a Rule 60(b) motion because
they filed it outside of Rule 59(e)’s 28-day time limit. See id.
       2
         Williams conceded at oral argument that we have jurisdiction to review the
district court’s order denying the defendants’ motion to reconsider. But her
“concession has no legal effect.” Stubblefield v. Windsor Capital Grp., 74 F.3d 990,
993 n.3 (10th Cir. 1996). “[W]here our jurisdiction is not authorized by statute, it
cannot be manufactured by consent.” Id. Accordingly, “we have an independent duty
to examine our own jurisdiction” despite Williams’ concession. Hill v. Vanderbilt
Capital Advisors, LLC, 702 F.3d 1220, 1223 (10th Cir. 2012) (quoting Amazon, Inc.
v. Dirt Camp, Inc., 273 F.3d 1271, 1274 (10th Cir. 2001)).
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                                      DISCUSSION

       A party in a civil case must generally file a notice of appeal within “30 days

after entry of the . . . order appealed from.” Fed. R. App. P. 4(a)(1)(A). But a party

may enlarge that 30-day period by instead filing a Rule 60(b) motion within 28 days.

In that case, the 30-day clock runs “from the entry of the order disposing of” the Rule

60(b) motion. Fed. R. App. P. 4(a)(4)(A)(vi).

       Here, it appears the defendants were under the impression that Rule

4(a)(4)(A)(vi)’s tolling provision gave them 30 days from the district court’s July 31,

2015 denial of their motion to reconsider in which to appeal the district court’s

October 8, 2014 denial of their motion to dismiss. After all, the defendants’ notice of

appeal (1) explicitly stated the defendants were appealing the district court’s October

8, 2014 denial of their motion to dismiss; (2) noted the district court’s July 31, 2015

denial of their motion to reconsider, and (3) asserted the notice of appeal was

“accordingly timely filed pursuant to Fed. R. App. P. 4(a)(4)(A).” Aplt. App. 109.

Likewise, in their docketing statement, the defendants selected Fed. R. App.

P. 4(a)(4) as the authority fixing the time limit for filing their notice of appeal and

listed their motion to reconsider and the district court’s denial of that motion under a

heading for tolling motions that referenced Fed. R. App. P. 4(a)(4)(A).

       But the defendants filed their motion to reconsider nearly eight months after

the district court denied their motion to dismiss—too late to take advantage of Rule

4(a)(4)(A)(vi)’s tolling provision. And because the defendants’ August 4, 2015 notice

of appeal was therefore untimely as to the district court’s October 8, 2014 order

                                            4
denying their motion to dismiss, we lack jurisdiction to review that order. See Fed. R.

App. P. 4(a)(1)(A); Bowles v. Russell, 551 U.S. 205, 214 (2007) (explaining that

timely filing of notice of appeal in civil case is jurisdictional requirement).

      On August 24, 2015, we informed the defendants of this potential

jurisdictional defect and ordered them to address the timeliness of their notice of

appeal as to the district court’s October 8, 2014 order denying their motion to

dismiss. In response, the defendants took a different tack. They noted that they filed

their notice of appeal only four days after the district court denied their motion to

reconsider. Thus, they insisted, we should instead construe their notice of appeal as

timely seeking relief from that order.

      But in pursuing this new course, the defendants face yet another obstacle.

Namely, even if their notice of appeal is timely as to the order denying their motion

to reconsider, see Fed. R. App. P. 4(a)(1)(A), the sufficiency of their notice is far

from clear. A notice of appeal must “designate the . . . order . . . being appealed.”

Fed. R. App. P. 3(c)(1)(B). And—as the defendants acknowledge—their notice of

appeal expressly designated the district court’s October 8, 2014 order denying their

motion to dismiss, not its July 31, 2015 order denying their motion to reconsider.

      Like Rule 4(a)(1)(A)’s 30-day filing deadline, Rule 3(c)(1)(B)’s designation

requirement is jurisdictional. See Gonzalez v. Thaler, 132 S. Ct. 641, 652 (2012)

(citing Smith v. Barry, 502 U.S. 244, 248 (1992)). Nevertheless, we construe that

designation requirement liberally. Nolan v. U.S. Dep’t of Justice, 973 F.2d 843, 846

(10th Cir. 1992). Thus, “[a] mistake in designating the judgment appealed from is not

                                            5
always fatal, so long as the intent to appeal from a specific ruling can fairly be

inferred by probing the notice and the other party was not misled or prejudiced.”

Sines v. Wilner, 609 F.3d 1070, 1074 (10th Cir. 2010) (quoting Sanabria v. United

States, 437 U.S. 54, 67 n.21 (1978)). Our task, then, is to determine whether the

defendants expressed an intent to appeal the order denying their motion to reconsider.

      In attempting to discern their intent, we may look to the three documents the

defendants “filed within the time period for filing the notice of appeal”: the notice of

appeal itself; their docketing statement; and their motion to stay the district court

action pending this appeal. Denver & Rio Grande W. R.R. Co. v. Union Pac. R.R.

Co., 119 F.3d 847, 849 (10th Cir. 1997). But the only intent we can infer from these

documents is an intent to appeal the district court’s October 8, 2014 order denying

the defendants’ motion to dismiss, not its July 31, 2015 order denying their motion to

reconsider.

      First, the notice of appeal clearly specified that the defendants sought to appeal

“from an order denying qualified immunity entered in this action on October 8,

2014.” Aplt. App. 109. The notice of appeal did at least mention the order denying

the defendants’ motion to reconsider: it stated, “Defendants subsequently filed their

Motion for Reconsideration, which the [c]ourt denied on July 31, 2015 . . . . This

Notice is accordingly timely filed pursuant to Fed. R. App. P. 4(a)(4)(A).” Aplt. App.

109. But it’s clear from this language that the defendants didn’t reference the order

denying their motion to reconsider because they intended to appeal it. Instead—as

discussed above—they referenced it because they mistakenly believed that filing the

                                            6
motion to reconsider enlarged their time for appealing the denial of their motion to

dismiss under Rule 4(a)(4)(A)(vi).

       The same intent is evident from the defendants’ docketing statement. There,

the defendants selected Rule 4(a)(4) as the authority fixing the time for filing their

notice of appeal. And under a heading for tolling motions that cited Rule 4(a)(4)(A),

they listed the motion to reconsider and the district court’s denial of that motion.

Again, this language doesn’t suggest that the defendants intended to appeal the denial

of the motion to reconsider. Rather, it reinforces their intent to use the denial of that

motion as a means to accomplish their actual goal: appealing the denial of their

motion to dismiss.

       Finally, the defendants’ motion to stay reiterated that their appeal was “based

upon the [c]ourt’s denial of their [m]otion to [d]ismiss,” not upon its denial of their

motion to reconsider. Aplt. App. 111.

       Because all three of these documents express an unambiguous intent to appeal

only the order denying the defendants’ motion to dismiss, it is unsurprising that the

defendants never explicitly assert the documents also evidence an intent to appeal the

order denying their motion to reconsider. Instead, the defendants again chart a new

course. This time, they insist the dispositive question isn’t whether they expressed an

intent to appeal a particular order, but whether they expressed an intent to appeal a

particular issue: the issue of qualified immunity.

       We agree that—in some cases—information about the issue on appeal can

provide insight into the order being appealed. See, e.g., Trotter v. Regents of Univ. of

                                            7
New Mexico, 219 F.3d 1179, 1184 (10th Cir. 2000) (noting that “a docketing

statement filed within the time limits for filing a notice of appeal which ‘clearly

describe[s]’ the issues on appeal serves as the ‘functional equivalent’ of a properly

drafted Rule 3 notice of appeal” (quoting Denver & Rio Grande, 119 F.3d at 849

(alteration in original))).

       But this isn’t one of those cases. Here, the defendants didn’t simply “fail[] to

designate” the order they now seek to challenge on appeal. Denver & Rio Grande,

119 F.3d at 848. Instead, they repeatedly and consistently attempted to use that

undesignated order as a tool to obtain appellate review of the order they actually

designated. That’s not a mistake. That’s a strategy. And it’s one the defendants opted

to pursue until we sua sponte pointed out its flaws in our August 24, 2015 order.

Only then did the defendants attempt to change course. When a party makes this kind

of strategic decision to treat an order as a means to an end for purposes of Rule

4(a)(4)(A)(vi)’s tolling provision, we see no reason to treat that same order as an end

in itself for purposes of Rule 3(c)(1)(B)’s designation requirement.3 Cf. Nolan, 973

F.2d at 845-46 (declining to exercise jurisdiction over undesignated order that


       3
        In addition to Denver & Rio Grande, 119 F.3d 847, the defendants offer
several other cases they contend establish that an appellant can comply with Rule 3’s
designation requirement by expressing an intent to appeal a particular issue, rather
than an intent to appeal a particular order. See, e.g., Bohn v. Park City Grp., Inc., 94
F.3d 1457 (10th Cir. 1996), Jones v. Nelson, 484 F.2d 1165 (10th Cir. 1973), Cheney
v. Moler, 285 F.2d 116 (10th Cir. 1960). But none of these cases suggest we must
apply that general rule where—as here—an appellant makes a strategic decision to
use an undesignated order as a means of obtaining appellate review over a designated
order, and then later attempts to challenge the undesignated order on appeal.
Accordingly, we find these cases inapposite.
                                            8
plaintiff submitted in order to avoid dismissal of appeal from order he actually

designated).

      Like the defendants in this case, the plaintiff in Nolan filed an undesignated

order with this court in an effort to obtain review of the order he actually designated

in his notice of appeal. Id. And, like the defendants in this case, the plaintiff in Nolan

then asked us to review that undesignated order. Id. at 844-45. We declined to do so.

Specifically, we reasoned that because the plaintiff only filed the undesignated order

in an effort to keep us from dismissing his appeal from the order he actually

designated, we couldn’t “discern from such a filing an intent also to appeal” from the

undesignated order. Id. at 847. Accordingly, we dismissed the plaintiff’s challenge to

the undesignated order for lack of jurisdiction under Rule 3(c). Id.

      As in Nolan, we can’t “discern from” the defendants’ strategic references to

the undesignated order denying their motion to reconsider “an intent also to appeal

from” that order. Id. Because we therefore lack jurisdiction to review the order

denying their motion to reconsider, see id., we dismiss the defendants’ appeal.

                                     CONCLUSION

      We construe Rule 3(c)(1)(B)’s designation requirement liberally. But that

doesn’t mean we can look the other way when a party fails to comply with that

requirement altogether. Here, the defendants unquestionably failed to explicitly

designate the order denying their motion to reconsider. And while their notice of

appeal and their docketing statement referenced that order, they did so in a manner

that only emphasized the defendants’ true intent: to challenge on appeal the order

                                            9
they actually designated. Under these circumstances, we can’t “fairly . . . infer[]”

from any of the relevant documents an intent to appeal from the undesignated order.

Sines, 609 F.3d at 1074 (quoting Sanabria, 437 U.S. at 67 n.21). Accordingly, we

dismiss the appeal for lack of jurisdiction.




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