Unpublished Dispositionharold Owens, Plaintiff-appellant, v. Secretary of Health and Human Services, Defendant-appellee, 812 F.2d 1407 (6th Cir. 1987)

ORDER

The plaintiff has filed two notices of appeal in this action for review of the Secretary's denial of social security disability benefits. He now moves to consolidate the appeals for purposes of appellate review.

The district court entered its judgment on September 15, 1986. Pursuant to Rule 59(e), Federal Rules of Civil Procedure, the plaintiff filed a timely-served motion for reconsideration on September 22, 1986. He also filed a notice of appeal on October 15, 1986, and Case No. 86-6098 herein resulted. Thereafter, the district court denied the motion for reconsideration on November 10, 1986, and the plaintiff filed a second notice of appeal on December 5, 1986. That notice resulted in Case No. 86-6260 herein.

Rule 4(a) (4), Federal Rules of Appellate Procedure, provides that a timely-served motion under Rule 59 will toll the time for filing a notice of appeal, which time will run anew from an order disposing of the motion. Rule 4(a) (4) further provides:

A notice of appeal filed before the disposition of [a Rule 59 motion] 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....

Under this rule, the notice of appeal filed on October 15, 1986, was a nullity and conferred no jurisdiction on this Court. Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982). The notice of appeal filed on December 5, 1986, did confer jurisdiction in this Court to review all proceedings below.

It is ORDERED that the motion to consolidate is denied. It further is ORDERED that the appeal in Case No. 86-6098 is dismissed for lack of appellate jurisdiction. This order has no effect upon the appeal in Case No. 86-6260 and all further appellate proceedings will be filed under that number alone.