* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 3 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

SHERIAN GANSERT,

Plaintiff-Appellee,

v. COLORADO STUDENT LOAN PROGRAM, State of Colorado, Department of Higher Education; COLORADO DEPARTMENT OF HIGHER EDUCATION,

Defendants, and JEANNE M. ADKINS, in her individual and official capacity,

Defendant-Appellant. No. 04-1368 (D.C. No. 03-F-1327 (PAC))

(D. Colo.)

ORDER AND JUDGMENT *

Before SEYMOUR , BRISCOE , and McCONNELL , Circuit Judges.-2-

Sherian Gansert brought a civil action against Jeanne M. Adkins in both her official and individual capacity pursuant to 42 U.S .C. § 1983 and the Colorado Whistleblower Act, Colo. Rev. Stat. §§ 24-50.5-101 et seq . Ms. Adkins filed a motion for summary judgment raising the affirmative defense of qualified immunity regarding Ms. Gansert’s § 1983 claims and a motion to stay all proceedings pending determination of her qualified immunity defense. The district court denied Ms. Adkins’ motion to stay pr oceedings. It has not ruled on the merits of the qualified immunity issue. This appeal followed. We dismiss due to lack of jurisdiction. Ms. Adkins separatelyfiled a motion to stay the district court proceedings pending this appeal. Gi ven our lack of jurisdiction over the appeal, we deny the motion to stay as moot. The federal courts of appeals have jurisdiction ove r appeals from all final decisions of district courts, except where direct r eview is available in the Supreme Court. 28 U.S.C. § 1291; United States v. Storey , 2 F.3d 1037, 1040 (10th Cir. 1993). According to the collateral orde r doctrine, a district court’s order may qualify as a “final decision” under § 129 1 absent an entry of final judgment in limited circumstances. Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541 (1949); Digital Equip. Corp. v. Desktop Direct, Inc. , 511 U.S. 863, 867 (1994) (noting that the collateral order doctrine “ is best understood not as an2 In this connection, we note that the summary judgme nt motion did not

become at issue until September 10, 2004, when Ms. Adkins’ reply brief was filed, and the trial is not scheduled to begin unti l March 28, 2005. -3- exception to the final decision rule laid down by C ongress in § 1291, but as a practical construction of it” (quotations omitted))

. Ms. Adkins correctly argues that an order postponin g until trial a decision on a motion to dismiss or for summary judgment base d on qualified immunity from suit falls within the collateral order doctrin e and is, therefore, appealable. Workman v. Jordan , 958 F.2d 332 (10th Cir. 1992). We have also heldthat we have appellate jurisdiction where a district court decides a motion to dismiss without specifically addressing qualified immunity defenses. Lowe v. Town of Fairland, Okla. , 143 F.3d 1378, 1380 (10th Cir. 1998). These case s, however, are inapposite here. Ms. Adkins does not contend that the district court is refusing to decide her motion for summary judgment. Instead, s he requests that we review the denial of a motion to stay further proceedings pending the district court’s decision on her summary judgment motion. 2It is well settled that a denial of a motion to stay proceedings which does no more than postpone the resolution of an action is not an appealable collateral order. Gulfstream Aerospace Corp. v. Mayacamas Corp. , 485 U.S. 271 (1988).-4-

For the foregoing reasons, weDISMISS for want of jurisdiction.

ENTERED FOR THE COURT PER CURIAM