Montoya v. Vigil, 898 F.3d 1056 (10th Cir. Aug. 7, 2018)

The Tenth Circuit concluded that it lacked jurisdiction to consider a qualified immunity argument, because the defendants had not adequately raised that defense by making a Rule 12(b)(6) “failure-to-state-a-claim” argument.  The court articulated the following rule for determining whether it has jurisdiction over interlocutory qualified immunity appeals: “if the district court explicitly decided the qualified immunity question, we will usually have jurisdiction,” but if the district court is silent on the issue, the silence can be interpreted as an implicit denial only when the defendant has expressly raised the defense.