PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ REGINA WILLIAMS, individually and as personal representative of the estate of George Rouse, deceased, Plaintiff - Appellee,

v. 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. No. 15-6146

________________ _________________ 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 Gene ral, Oklahoma Attorn ey General’s Office, Litigation Section, Oklahoma C ity, Oklahoma, for Appellants. D. Mitchell Garrett, Jr. (Amber Peckio Garrett, with him on the brief), Garrett Law Center, Tulsa, Oklahoma, for Appellee.

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### September 20, 2016
Elisabeth A. Shumaker Clerk of Court2 Before GORSUCH , PHILLIPS , and MORITZ , Circuit Judges.

________________ _________________ MORITZ , Circuit Judge.

________________ _________________ Oklahoma State Bureau of Investig ation 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 th eir 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 a ppeal for lack of jurisdiction.
B ACKGROUND George Rouse hanged himself shortly af ter the defendants tr ansported him to the Grady County Law Enforcement Center (GCLEC) for booking. Rouse’s mother, Regina Williams, br ought suit under 42 U.S.C. § 1983. She alleged the defendants knew Rouse was suicidal when they deliver ed 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 es tablished constitutional rights under the Fourteenth Amendment. The defendants could have immediately appealed th e district court’s order denying their motion to dismiss. See Mitchell v. Forsyth , 472 U.S. 511, 530 (1985).3 They didn’t. Nor did they immediately file a motion to alter or amend judgment, or a motion seeking relief from j udgment. 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 (201 5)—the defendants filed a motion to reconsider 1 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 denyi ng their motion to dismiss. But in their opening brief, the defendants in stead ask us to review and reverse the district court’s July 31, 2015 order denying their moti on to reconsider. For the reasons discussed below, we lack jurisdiction to grant that request. 2

1 “The federal rules do not recognize a mo tion 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 s eeking relief from judgment unde r 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 th eir motion to reconsider as a Rule 60(b) motion because they filed it outside of Ru le 59(e)’s 28-day time limit. See id. 2 Williams conceded at oral argument that we have ju risdiction to review the district court’s order de nying 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]he re 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)).4 D ISCUSSION A party in a civil case must generally fi le 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 th e entry of the order di sposing 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 distri ct 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, a nd (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 de nial of that motion under a heading for tolling motions that refere nced 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 di smiss—too late to take advantage of Rule 4(a)(4)(A)(vi)’s tolling provision. And becaus e the defendants’ August 4, 2015 notice of appeal was therefore untim ely as to the district co urt’s October 8, 2014 order5 denying their motion to dism iss, we lack jurisdiction to review that order. See Fed. R. App. P. 4(a)(1)(A); Bowles v. Russell , 551 U.S. 205, 214 (200 7) (explaining that timely filing of notice of appeal in civ il case is jurisdictional requirement). On August 24, 2015, we informed the defendants of this potential jurisdictional defect and orde red them to address the tim eliness of their notice of appeal as to the district court’s October 8, 2014 or der denying their motion to dismiss. In response, the de fendants took a different tack. They noted that they filed their notice of appeal only four days after the district court de nied their motion to reconsider. Thus, they insist ed, 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 th e 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 d eadline, Rule 3(c)(1)(B)’s designation requirement is jurisdictional. See Gonzalez v. Thaler , 132 S. Ct. 64 1, 652 (2012) (citing Smith v. Barry , 502 U.S. 244, 248 (1992)). Neve rtheless, 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 judgm ent appealed from is not6 always fatal, so long as th e intent to appeal from a sp ecific ruling can fairly be inferred by probing the notice and the othe r party was not misl ed 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 th e 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 a ppeal”: 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 th e 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 specifi ed 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 st ated, “Defendants subs equently filed their Motion for Reconsideration, which the [c]o urt denied on July 31, 2015 . . . . This Notice is accordingly timely fi led 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 a ppeal it. Instead—as discussed above—they referenc ed it because they mistaken ly believed that filing the7 motion to reconsider enlarged their time for appealing th e denial of their motion to dismiss under Rule 4(a)(4)(A)(vi). The same intent is evid ent from the defendants’ doc keting statement. There, the defendants selected Rule 4(a)(4) as th e authority fixing the time for filing their notice of appeal. And under a heading for to lling motions that cited Rule 4(a)(4)(A), they listed the motion to rec onsider and the district cour t’s denial of that motion. Again, this language doesn’t suggest that the defendants in tended to appeal the denial of the motion to reconsider. Ra ther, it reinforces their intent to use the denial of that motion as a means to accomplis h their actual goal: appea ling the denial of their motion to dismiss. Finally, the defendants’ moti on 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 unamb iguous 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 de fendants again chart a new course. This time, they insist the dispositiv e question isn’t whether they expressed an intent to appeal a particular order , but whether they expresse d an intent to appeal a particular issue : the issue of qualified immunity. We agree that—in some cases—informa tion about the issue on appeal can provide insight into the order being appealed. See, e.g. , Trotter v. Regents of Univ. of8 New Mexico , 219 F.3d 1179, 1184 (10th Cir. 2000) (noting that “a docketing statement filed within the ti me limits for filing a notice of appeal which ‘clearly describe[s]’ the issues on appeal serves as the ‘functional equiva lent’ 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 appe llate 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 ch ange 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 r eason to treat that sa me 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 th at an appellant can co mply with Rule 3’s designation requirement by expres sing 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—a n appellant makes a strategic decision to use an undesignated order as a means of obtaining appella te review over a designated order, and then later atte mpts to challenge the unde signated order on appeal. Accordingly, we find th ese cases inapposite.9 plaintiff submitted in order to avoid dismissal of appeal from order he actually designated). Like the defendants in th is case, the plaintiff in Nolan filed an undesignated order with this court in an effort to obtain review of th e 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 th e 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 dismisse d 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 defe ndants’ strategic references to the undesignated order denying th eir motion to reconsider “an intent also to appeal from” that order. Id. Because we therefore lack juri sdiction to review the order denying their motion to reconsider, see id. , we dismiss the de fendants’ appeal. C ONCLUSION We construe Rule 3(c)(1)(B)’s designa tion requirement liberally. But that doesn’t mean we can look the other way wh en a party fails to comply with that requirement altogether. Here, the defenda nts unquestionably failed to explicitly designate the order denying their motion to reconsider. And while their notice of appeal and their docketing stat ement referenced that order, they did so in a manner that only emphasized the defe ndants’ true intent: to ch allenge on appeal the order10 they actually designated . Under these circumstances, we can’t “fairly . . . infer[]” from any of the relevant documents an inte nt 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 l ack of jurisdiction.