Unpublished Dispositionrobert L. Kinghorn, Plaintiff-appellant, v. Mt. Vernon City School District Board of Education,defendant-appellee, 889 F.2d 1087 (6th Cir. 1989)

Before MERRITT, Chief Judge, WELLFORD, Circuit Judge, and ROBERT E. DeMASCIO, Senior District Judge^* .

ORDER

Robert L. Kinghorn moves to proceed in forma pauperis (IFP) on appeal from the judgment for the defendant Board of Education of the Mount Vernon City School District in this action for attorney's fees and costs incurred in an administrative proceeding brought pursuant to the Education of All Handicapped Children's Act, 20 U.S.C. § 1400 et seq.

First, plaintiff's motion to proceed IFP is clearly without merit. Plaintiff earns $43,200 annually. Paying the required filing fee obviously would impose no undue hardship on plaintiff.

Second, plaintiff's appeal must be dismissed for lack of jurisdiction. A review of the record indicates that the district court judgment was entered on January 27, 1989. However, Kinghorn served a timely Fed. R. Civ. P. 59 motion to reconsider the judgment on February 6, 1989. Therefore, the Fed. R. Civ. P. 59 motion tolled the appeals period pursuant to Fed. R. App. P. 4(a) (4). Nonetheless, Kinghorn filed a notice of appeal on February 27, 1989, before the court ruled on the motion to reconsider on March 2, 1989.

A notice of appeal filed before the disposition of a timely Rule 59(e) motion has no effect and a new notice of appeal must be filed within the prescribed period measured from the entry of the district court's order disposing of such motion. Fed. R. App. P. 4(a) (4). A timely notice of appeal is mandatory and jurisdictional. Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982); Browder v. Director, Dep't of Corrections, 434 U.S. 257 (1978). Therefore, we conclude that this court is without jurisdiction to consider the merits of this appeal.

Accordingly, plaintiff's motion to proceed IFP is DENIED and the appeal is DISMISSED. Rule 9(b) (1), Rules of the Sixth Circuit.