dissenting.
I dissent from the majority opinion, and would affirm the denial of Whitmore’s motion for summary judgment, because, in my opinion, Whitmore is advancing an argument on appeal which he failed to properly present to the district court.
“[Gjovemment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). In this case, Vaughn alleges that Defendants wilfully violated his right under the Rehabilitation Act to be free of discrimination based upon his handicap, and his rights under 42 U.S.C. § 1981 and 1985(3) to be free from race-based discrimination.
In their 58-page memorandum to the district court in support of dismissal and summary judgment, Whitmore and the other named defendants devoted exactly six paragraphs to the defense of qualified immunity. J.A at 138-140.1 Defendants stated the legal tests for qualified immunity and then asserted in defense that the SBA employees properly followed the applicable federal regulations. In rejecting Defendants’ qualified immunity defense, the district court stated:
Defendants do not contend that these are not “clearly established” rights or that a reasonable person would not have known of these rights. Rather, Defendants assert that they based their evaluations on the proper statutory and regulatory criteria. Defendants’ position fails to comprehend the purpose of qualified immunity.
J.A. at 55-56 (citation omitted).
Now, on appeal, Whitmore supplements his qualified immunity defense with another assertion that was not raised below. Relying on Nuclear Transport & Storage, Inc. v. United States, 890 F.2d 1348, 1355 (6th Cir.1989), cert. denied, 494 U.S. 1079, 110 S.Ct. 1807, 108 L.Ed.2d 938 (1990), Whitmore claims that Vaughn has failed to state his claim “in terms of facts rather than conclusions.” See Whitmore’s Br. at 25-31. Ignoring that this argument was raised for the first time on appeal, the majority finds this argument persuasive. See Maj.Op. at [1326— 27]. Thus, the majority bases its holding on Vaughn’s failure to connect Whitmore’s actions to the discrimination alleged in Vaughn’s complaint. A long line of cases in this circuit, however, “strongly reinforces the principle that issues not litigated in the trial court are generally not appropriate for appellate consideration in the first instance.” Taft Broadcasting Co. v. United States, 929 F.2d *1331240, 243 (6th Cir.1991); see also Singleton v. Wvlff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976) (noting that, as a general rule, “a federal appellate court does not consider an issue not passed upon below”).
Here, Whitmore was free to advance as grounds for dismissal Vaughn’s failure to state his claim “in terms of facts rather than conclusions,” but nevertheless failed to do so. As Whitmore’s connection, or lack thereof, to the discrimination alleged in Vaughn’s complaint is not, in my opinion, a question where proper resolution is beyond any doubt, see Turner v. City of Memphis, 369 U.S. 350, 353, 82 S.Ct. 805, 806-07, 7 L.Ed.2d 762 (1962), I do not believe that this is an appropriate basis for reversing the lower court. I therefore respectfully dissent.
. Among other things, the Defendants' "Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss, or in the Alternative, for Summary Judgment” challenges the use of Tennessee’s long-arm statute for personal jurisdiction, asserts that the statute of limitations has ran for various claims, and argues that Vaughn has failed to make out a prima facie case under both the Rehabilitation Act and the civil rights laws.