ROSE MECKLEY, PETITIONER V. MICHAEL MANGUM, ET AL. No. 90-6099 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 Fourth Circuit Brief For The Federal Respondents In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. B1-B3) is unreported. The order of the district court (Pet. App. C1-C3) is unreported. JURISDICTION The judgment of the court of appeals was entered on July 24, 1990. A petition for rehearing was denied on August 17, 1990. Pet. App. A1-A2. The petition for a writ of certiorari was filed on October 29, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the court of appeals properly dismissed petitioner's appeal because the notice of appeal had been filed before the district court disposed of her pending motion to vacate judgment under Rule 59 of the Federal Rules of Civil Procedure. STATEMENT 1. In February 1990, petitioner filed this federal court action against respondents, various state and federal prison officials. As construed by the district court, petitioner's pro se complaint alleged that respondents required (petitioner) to share facilities at all times with smokers during her incarceration at (various) correctional facilities, giving rise to a cause of action under 42 U.S.C. Section 1983. (Petitioner) claims that, as a non-smoker, she is subjected to "sidestream smoke" that is produced by the smoking population of the prison. (Petitioner) also complains that the * * * prisons (at issue) have no non-smoking areas for long-term residents. Pet. App. C2. On March 26, 1990, the district court dismissed petitioner's action for failure to state a claim. Pet. App. C1-C3. "Construing the complaint most favorably to (petitioner)," the court concluded that "the claims contained therein (do not) give rise to a cause of action under 42 U.S.C. Section 1983." Pet. App. C2. /1/ Thereafter, on April 2, 1990, petitioner filed in the district a motion to vacate judgment under Fed. R. Civ. P. 59. Several weeks later, on April 25, petitioner also filed a notice of appeal under Fed. R. App. P. 4. On April 30, the district court denied petitioner's Rule 59 motion. 2. In July 1990, the court of appeals dismissed petitioner's appeal. Pet. App. B1-B3. It first determined that petitioner had "served a timely Fed. R. Civ. P. 59 motion to vacate judgment and then filed her notice of appeal of the district court's dismissal." Pet. App. B3. The court then pointed out that, "(u)nder Fed. R. App. P. 4(a)(4), in order for (the court) to gain jurisdiction over the appeal the notice of appeal must be filed after the entry of judgment disposing of the Rule 59 motion." Pet. App. B3 (citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982)). /2/ Such a requirement, the court recognized, is "mandatory and jurisdictional." Pet. App. B3. Here, "because (petitioner's) notice of appeal was filed before the district court ruled on her Rule 59 motion, the notice is without effect." Pet. App. B3. The court therefore concluded that because petitioner "did not note a timely appeal," it must "dismiss the appeal." Ibid. ARGUMENT Petitioner contends (Pet. 13-16) that the court of appeals erred in dismissing the appeal on the ground that she filed a notice of appeal before the district court disposed of her motion to vacate judgment under Rule 59 of the Federal Rules of Civil Procedure. That claim is without merit. Under the plain terms of Fed. R. App. P. 4(a)(4)(note 2, supra) and well-settled law, petitioner's notice of appeal "is ineffective unless filed after entry of judgment on a Rule 59 motion." Acosta v. Louisiana Dep't of Health & Human Resources, 478 U.S. 251, 254 (1986); see Griggs v. Provident Consumer Discount Co., 459 U.S. at 59-61. As commentators have pointed out, under Fed. R. App. P. 4(a)(4), when a party files a notice of appeal before the disposition of a pending Rule 59 motion, "(t)he appeal simply self-destructs." 9 J. Moore, B. Ward, & J. Lucas, Moore's Federal Practice Paragraph 204.12(1), at 4-70 n.17 (2d ed. 1991); see generally 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure: Jurisdiction Section 3950 (1977 & Supp. 1991). /3/ Petitioner may not evade the requirements of Fed. R. App. P. 4 by invoking the doctrine of equitable tolling. See Irwin v. Veterans Admin., 111 S. Ct. 453, 456-458 (1990). That is so because these requirements are "mandatory and jurisdictional." Griggs v. Provident Consumer Discount Co., 459 U.S. at 61 (quoting Browder v. Director, Illinois Dep't of Corrections, 434 U.S. 257, 264 (1978)). In any event, petitioner at no time tried to file a second notice of appeal, even after June 20, 1990, when the institution to which she had been moved agreed to pay for mailing her legal mail. See Pet. 15. /4/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General WILLIAM KANTER ROBERT D. KAMENSHINE Attorneys MAY 1991 /1/ In its order of dismissal, the district court stated that if petitioner wished to appeal, she must file a notice of appeal within 30 days. Pet. App. C2-C3. /2/ Rule 4(a)(4) of the Federal Rules of Appellate Procedure provides in pertinent part: If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party * * * under Rule 59 to alter or amend the judgment * * *, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above. No additional fees shall be required for such filing. /3/ The fact that the federal and state respondents evidently did not have notice of petitioner's action, see Pet. 14; State Resp. Br. in Opp. 3, does not excuse petitioner's failure to comply with the applicable jurisdictional requirements. Petitioner could not file an effective notice of appeal until her own, earlier filed Rule 59 motion was ruled on, i.e., until April 30, 1990. The notice of appeal filed on April 25 was therefore ineffective. /4/ Petitioner also contends (Pet. 3-13) that the district court erred in dismissing her action for failure to state a claim. Since the court of appeals dismissed the appeal for lack of jurisdiction, this contention is not properly before the Court. See Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 697 (1984); California v. Taylor, 353 U.S. 553, 557 n.2 (1957).