DORIS E. WYATT, PETITIONER V. LOUIS W. SULLIVAN, SECRETARY OF
HEALTH AND HUMAN SERVICES

   No. 89-7614

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Ninth Circuit

   Brief For The Respondent In Opposition

                            OPINIONS BELOW

   The opinion of the court of appeals (App., infra, 29a) is
unreported.  The opinion of the district court (App., infra, 5a) is
unreported.

                             JURISDICTION

   The judgment of the court of appeals (App., infra, 29a) was entered
on September 13, 1989.  A petition for reconsideration was denied on
February 14, 1990 (App., infra, 30a).  The petition for a writ of
certiorari was filed on May 15, 1990.  The jurisdiction of this Court
is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the court of appeals lacks jurisdiction to entertain
petitioner's appeal because the notice of appeal was untimely filed.

                               STATEMENT

   1. On July 7, 1978, petitioner initiated suit against the Secretary
of Health and Human Services, claiming that she was entitled to
disability benefits under Title II of the Social Security Act, 42
U.S.C. 401, because she became disabled prior to the expiration of her
insured status on March 31, 1963.  See App., infra, 8a-9a.  Affirming
the administrative law judge, the United States District Court for the
Central District of California held that petitioner was able to work
at her position as a telephone solicitor and clerk prior to March 31,
1963, and thus was not disabled.  See App., infra, 9a.  The United
States Court of Appeals for the Ninth Circuit reversed and remanded
for consideration of new evidence presented by petitioner relating to
her psychological state prior to March 31, 1963.  Wyatt v. Heckler,
No. 83-5683 (9th Cir. Nov. 2, 1984).

   2. On September 22, 1988, the district court again entered judgment
in favor of the Secretary.  On November 25, 1988, four days after a
notice of appeal was due, petitioner filed a "Stipulation to Extend
the Time for Pleading in Opposition to Order Entered For Defendant,"
which was denied on January 13, 1989.  App., infra, 15a-18a.  On that
same day, petitioner filed a "Motion to Reopen the Case;" this motion
was denied on January 31, 1989.  App., infra, 19a-22a.

   3. Petitioner asserts that on March 31, 1989, she sent, by
certified mail, "Petitioner(')s Objection To The Court's Or(d)er of
January 31, 1989." App., infra, 23a-24a.  The last line of this
pleading states:  "If this Petition is denied, please consider this as
an Appeal." App., infra, 24a.  Petitioner claims that the district
court clerk received the motion on April 3, 1989, but the motion was
never filed.  On June 3, 1989, petitioner filed a notice of appeal.
See App., infra, 4a.

   4. On July 31, 1989, the court of appeals ordered petitioner to
show cause why the appeal should not be dismissed for lack of
jurisdiction.  After petitioner filed a response to the order to show
cause (App., infra, 25a-28a), the court of appeals held that
petitioner had failed to file her notice of appeal within the time
limits of Fed. R. App. P. 4(a)(1) and dismissed her appeal.  App.,
infra, 29a.

                               ARGUMENT

   Because the failure to file a timely notice of appeal deprives the
appellate courts of jurisdiction to entertain an appeal, the court of
appeals correctly dismissed petitioner's appeal as untimely.  See
Browder v. Director, Department of Corrections, 434 U.S. 257, 264
(1978).

   1. Rule 4(a)(1) of the Federal Rules of Appellate Procedure
specifically provides that, in a civil case involving an officer of
the United States as a party, the notice of appeal shall be filed with
the clerk of the district court within 60 days after the date of the
judgment or order appealed from.  Petitioner filed a notice of appeal
in this case on June 30, 1989, over nine months after final judgment
had been entered on September 22, 1988.  The district court did not
extend the time for filing a notice of appeal.  See Fed. R. App. P.
4(a)(5).

   2. Petitioner contends that, if the notice of appeal is treated as
untimely, her objection to the court's order of January 31, 1989,
should be treated as a timely notice of appeal because it was filed
within sixty days of the denial of the motion to reopen the case.  A
motion brought within ten days of judgment under Rule 50(b), 52(b), or
59 of the Federal Rules of Civil Procedure will toll the time period
for filing a notice of appeal until judgment is entered on the
respective motion.  Fed. R. App. P. 4(a)(4).  Petitioner's motion to
reopen the case cannot be construed as such a motion, however, because
it was filed approximately four months after the entry of judgment.
See United States v. One Urban Lot, 882 F.2d 582, 584 (1st Cir. 1989);
 Williams v. Brown & Root, Inc., 828 F.2d 325, 328 (5th Cir. 1987).
Therefore, petitioner's claim that she filed a notice of appeal within
60 days of the denial of her motion to reopen is irrelevant.  The time
for bringing an appeal began to run on September 22, 1988, the date
the decision was entered against her, and expired well before April 3,
1989, the date on which petitioner asserts the motion to reopen was
received by the district court clerk.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   STUART M. GERSON

      Assistant Attorney General

   ANTHONY J. STEINMEYER

   LORI M. BERANEK

      Attorneys

   JULY 1990

   APPENDIX