                                                                                FILED
                                                                    United States Court of Appeals
                                     PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                       March 7, 2017

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

PARIS LaPRIEST POWELL,

      Plaintiff - Appellee,

v.                                                         No. 16-6026

ROBERT BRADLEY MILLER,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                        for the Western District of Oklahoma
                             (D.C. No. 5:10-CV-01294-D)
                       _________________________________

Submitted on the briefs:*

Murray E. Abowitz, Doerner Saunders Daniel & Anderson, LLP, Oklahoma City,
Oklahoma; Kayce L. Gisinger, Phillips Murrah P.C., Oklahoma City, Oklahoma; and
Richard N. Mann, Assistant Attorney General, Oklahoma Attorney General’s Office,
Litigation Section, Oklahoma City, Oklahoma, for Defendant-Appellant.

Mark Barrett, Norman, Oklahoma, for Plaintiff-Appellee.
                      _________________________________

Before TYMKOVICH, Chief Judge, HARTZ and PHILLIPS, Circuit Judges.
                 _________________________________

TYMKOVICH, Chief Judge.

      *
              After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist in 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.
                        _________________________________

      After his release from death row, Paris LaPriest Powell sued the prosecutor

responsible for his overturned conviction, Robert Bradley Miller. Powell charged

that Miller had suborned perjury from a key witness at his trial, Derrick Smith; had

hidden from the defense evidence of Miller’s agreement to help Smith with his own

criminal charges; and had failed to disclose the efforts Miller made on Smith’s behalf

with regard to those charges. Miller filed a motion to dismiss. The district court

granted the motion in part, but denied qualified immunity on certain claims. Miller

did not appeal the ruling. Years later, Miller filed a motion to reconsider the denial

of qualified immunity. The district court denied that motion as well. Miller now

appeals from the denial of his motion to reconsider.

      Because we lack appellate jurisdiction over the district court’s order denying

Miller’s motion to reconsider, we dismiss Miller’s appeal.

                                         * * *

      A summary of the procedural posture of the case provides context.

In 2010, Powell filed this 42 U.S.C. § 1983 action against Miller and other

defendants, alleging the defendants violated his constitutional rights in connection

with Powell’s 1997 murder conviction. In this case and a companion case involving

Powell’s co-defendant, Yancey Lyndell Douglas, Miller moved to dismiss the claims

asserted against him in his individual capacity based on various defenses, including

qualified immunity. The district court denied Miller’s qualified immunity defense as

to “Miller’s post-trial actions in which he did not act as an advocate for the State and

                                           2
was no longer employed as a prosecutor, including his alleged wrongful efforts on

behalf of Derrick Smith.” App. Vol. 2 at 413.

      Nearly three years later, on October 26, 2015, Miller filed his “Motion for

Rehearing of Defendant Robert Bradley Miller in His Individual Capacity and Brief

in Support.” App. Vol. 5 at 1206. In the motion, Miller sought reconsideration of

the district court’s prior order denying him qualified immunity. The district court

denied Miller’s motion because he had “presented no substantive basis for the Court

to change its opinion.” Id. at 1227–28. Miller now appeals the district court’s order

denying his motion to reconsider.

      It is well established that a district court’s pretrial denial of a qualified

immunity defense, to the extent it turns on an issue of law, is an appealable “final

decision” within the meaning of 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S.

511, 530 (1985). But Miller does not appeal from the district court’s order denying

his qualified immunity defense—that decision was issued in 2013 without appeal.

Rather, Miller appeals from the district court’s order denying reconsideration of that

ruling almost three years later. Under these circumstances, we lack jurisdiction to

consider the district court’s order denying Miller’s motion to reconsider.1


      1
              We recently encountered a factual situation similar to that in this case:
the unappealed denial of qualified immunity, followed by a later purported appeal
from the denial of reconsideration. Williams v. Akers, 837 F.3d 1075 (10th Cir.
2016). In Williams, we dismissed the appeal because the appellants’ notice of appeal
was untimely to appeal the underlying denial of qualified immunity, and they had
failed to designate the reconsideration order they belatedly claimed they were
appealing from. See id. at 1078-80. Due to that jurisdictional defect, we did not
                                                                             (continued)
                                            3
      Mitchell does not apply here. In Mitchell, the Supreme Court held that a

decision denying qualified immunity, to the extent it turns on an issue of law, “falls

within ‘that small class [of decisions] 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.’” Id. at 524-25

(quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)). The

Court reasoned that interlocutory orders denying qualified immunity satisfy the three

Cohen criteria for immediate appeal because they (1) conclusively determine the

disputed question; (2) resolve an important issue separate and collateral to the merits

of the underlying action; and (3) are effectively unreviewable from a final judgment.

Id. at 525-30.

      An order denying reconsideration of the denial of qualified immunity does not,

however, by itself satisfy the elements of the collateral order doctrine. As the Second

Circuit explained in Lora v. O’Heaney, 602 F.3d 106 (2d Cir. 2010):2


have occasion to discuss the issue here: whether an interlocutory denial of
reconsideration was even immediately appealable. Of relevance to this case,
however, we emphasized the role of the appellants’ appeal from a particular order,
rather than from a particular issue. See id. at 1079.
      2
              Other courts agree that such orders are not immediately appealable.
See, e.g., Phillips v. Montgomery Cty., 24 F.3d 736, 738 (5th Cir. 1994) (“[W]e hold
that the defendants in this case cannot fail to appeal and then restart the appellate
clock by refiling substantially the same motion.”); Taylor v. Carter, 960 F.2d 763,
764 (8th Cir. 1992) (dismissing appeal for lack of jurisdiction); Fisichelli v. City
Known as Town of Methuen, 884 F.2d 17 (1st Cir. 1989) (reasoning that if courts
                                                                              (continued)
                                            4
       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.
Id. at 111-12.

       Accordingly, Miller cannot use his motion for reconsideration, filed almost

three years after the fact, to resurrect his right to appeal the district court’s order

denying him qualified immunity. And Miller has failed to make any showing that the

order denying his motion to reconsider is otherwise immediately appealable. We

note, however, that our conclusion does not affect Miller’s right to timely appeal an

order denying summary judgment on the defense of qualified immunity. See Behrens

v. Pelletier, 516 U.S. 299, 307 (1996) (“Thus, Mitchell clearly establishes that an

order rejecting the defense of qualified immunity at either the dismissal stage or the

summary judgment stage is a ‘final’ judgment subject to immediate appeal.”); see

also Weise v. Casper, 507 F.3d 1260, 1265 (10th Cir. 2007).

       Based on the foregoing, we DISMISS Miller’s appeal because we lack

jurisdiction. Appellant’s motion to supplement the appendix is DENIED.


were required to consider appeals whenever a defendant unsuccessfully asked for
reconsideration, “a dilatory defendant would receive not only his allotted bite at the
apple, but an invitation to gnaw at will.”). Cf. Sinclair v. Schriber, 834 F.2d 103, 105
(6th Cir. 1987) (“[While] Mitchell v. Forsyth has permitted two bites of the appellate
apple, at the pleading [stage] and at the discovery stage, it did not contemplate that
the underlying finality requirement of Cohen and of section 1291 would be
ignored . . . .”).


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