Defendants appeal from the denial of a motion for reconsideration of an order of the United States District Court for the Southern District of New York (Richard M. Berman, Judge) denying their motion for summary judgment premised on qualified immunity. We conclude that the appeal from an untimely motion for reconsideration pursuant to Rule 59(e) of the Federal Rules of Civil Procedure does not bring up for review the merits of the underlying order. We also conclude that the appeal from a denial of a motion for reconsideration does not satisfy the requirements of the collateral order doctrine and, therefore, we lack jurisdiction. Reviewing the merits of defendants' qualified immunity claim on this appeal would render meaningless the timing provisions under Rule 4 of the Federal Rules of Appellate Procedure, and allowing appellate jurisdiction here would encourage unnecessary delay in future cases. Appeal dismissed.
The opinion of the court was delivered by: Underhill, District Judge
Argued: February 22, 2010
Before: CABRANES AND PARKER, Circuit Judges, AND UNDERHILL, District Judge.*fn1
Defendants Ada Perez ("Perez") and Gwen Schneider ("Schneider"), two New York State Department of Corrections officials, appealed from an order denying their motion for summary judgment on qualified immunity grounds and also from an order denying their motion for reconsideration of that summary judgment ruling. A motions panel of this Court previously ruled that only the appeal from the motion for reconsideration was timely. We now hold that the appeal from the order denying reconsideration of the qualified immunity ruling fails to meet the requirements of the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). Accordingly, we dismiss this appeal for lack of jurisdiction.
Background Plaintiff Iesha Lora ("Lora"), then acting pro se, brought suit in the United States District Court for the Southern District of New York (Richard M. Berman, Judge) under 42 U.S.C. § 1983 to remedy abuse and harassment she allegedly suffered when she was temporarily housed at the Rikers Island correctional facility. Specifically, Lora claims that Perez and Schneider were deliberately indifferent to her claims of abuse at Rikers Island, and that they failed to respond appropriately when informed of her complaints.
Defendants moved for summary judgment on qualified immunity grounds. On January 21, 2009, the District Court denied defendants' motion for summary judgment, holding that genuine issues of material fact precluded summary judgment on the qualified immunity defense. Defendants moved under Rule 59(e) of the Federal Rules of Civil Procedure*fn2 for reconsideration of the District Court's denial of qualified immunity on February 17, 2009. Defendants argued that the Court overlooked facts regarding their prompt investigation of Lora's allegations as well as controlling law that required the Court to assess whether defendants had violated Lora's "clearly established" rights in the specific factual context of this case. The District Court denied reconsideration in an order dated July 29, 2009. Defendants filed a notice of appeal from both the underlying decision and the decision of the motion for reconsideration on August 27, 2009.
Lora, still acting pro se, moved to dismiss the appeal. On November 19, 2009, a motions panel of this Court held that "the district court's orders denying qualified immunity are appealable collateral orders as [defendants] have conceded [Lora's] version of the facts for the purposes of the appeal." Lora v. Perez, No. 09-3690-pr, at 1-2 (2d Cir. Nov. 19, 2009) (citing Loria v. Gorman, 306 F.3d 1271, 1280 (2d Cir. 2002)). The motions panel also held that the notice of appeal was timely "only with respect to the district court's July 29, 2009 order, denying reconsideration of its January 21, 2009 order, because [defendants'] motion for reconsideration was untimely pursuant to Federal Rule of Appellate Procedure 4(a)(4)(A)." Id. at 2 (citing Branum v. Clark, 927 F.2d 698, 704 (2d Cir. 1991)). The motions panel did not expressly address the collateral order doctrine of Cohen, 337 U.S. 541, or whether this Court has jurisdiction to hear an interlocutory appeal from the denial of a motion for reconsideration in the absence of a timely appeal from the substantive ruling denying qualified immunity.
At oral argument, we raised nostra sponte the issue of our jurisdiction to hear this appeal. At our request, the parties filed letter briefs addressing the jurisdictional question. In their letter brief, defendants argue that: (1) the motions panel already held that the appeal from the denial of reconsideration was an appealable collateral order; and (2) defendants' untimely Rule 59(e) motion should be treated as a Rule 60(b) motion*fn3 and considered on appeal because the Rule 59(e) motion was filed within the 30-day appeal period following the summary judgment ruling.
We easily reject the defendants' first argument, that our jurisdiction to hear their appeal has already been decided. The pro se plaintiff never raised with the motions panel the issue whether the appeal satisfies the requirements of the narrow collateral order exception to the finality rule. More significantly, the motions panel did not decide that issue. The motions panel ruling did state that "the district court's orders denying qualified immunity are appealable collateral orders as [defendants] have conceded [Lora's] version of the facts for the purposes of the appeal." Lora v. Perez, No. 09-3690-pr, at 1. But when read in its proper context, that statement merely reflects acknowledgment of the general rule that denials of qualified immunity are not immediately appealable as collateral orders if the district court has identified genuine issues of material fact that preclude qualified immunity, unless the defendants adopt the plaintiff's version of the facts for purposes of the appeal. See Loria, 306 F.3d at 1280.
Even if the motions panel did silently address the jurisdictional question now before us, we may reexamine that decision. Although a merits panel will not ordinarily revisit a ruling by a motions panel "absent cogent or compelling reasons," we "may revisit the motions panel's decision jurisdiction." Rezzonico v. H & R Block, Inc., 182 F.3d 144, 149 (2d Cir. 1999) (internal quotation marks omitted). Here, because Lora was pro se at the time she moved to dismiss the appeal, it is not surprising that she did not raise the somewhat complex issue of appellate jurisdiction under the collateral order doctrine. She is now represented by counsel and the parties have briefed the issue. Because the motions panel's decision was "based on an abbreviated record and made without the benefit of full briefing by the parties," and "reexamination of a question regarding our jurisdiction is especially important whenever there is reason to believe that it may be lacking," id., we are not bound by any implied decision of this fundamental issue by the motions panel.
We also reject defendants' jurisdictional arguments on the merits, though that rejection requires more detailed explanation. Specifically, defendants' second argument, that treating the untimely Rule 59(e) motion as a Rule 60(b) motion filed within the 30-day appeal ...