Unpublished Disposition, 902 F.2d 1579 (9th Cir. 1989)

MEMORANDUM^** 

Plaintiff S.R. Sheppard filed this civil action in the district court under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-16, the Rehabilitation Act, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. Sheppard alleged that he had been discriminated against by his employer, the United States Postmaster, on the basis of handicap and age. The district court granted the government's motion for summary judgment based on Sheppard's failure to exhaust his administrative remedies. Judgment was entered on March 7, 1989. Sheppard filed a motion for reconsideration of the court's judgment on March 15, 1989 (a Federal Rules of Civil Procedure 59(e) motion). A Rule 59 motion must be filed within ten days of the entry of judgment. Fed. R. Civ. P. 59(e). Sheppard filed his motion eight days after judgment was entered. Therefore, the motion was timely.

While the motion for reconsideration was pending, Sheppard filed a notice of appeal on April 27, 1989 from the court's grant of summary judgment. On May 3, 1989, the district court filed an order denying Sheppard's motion for reconsideration. Sheppard did not file a notice of appeal after the entry of the May 3, 1989 order. On May 30, 1989, Sheppard filed a Civil Appeals Docketing Statement, as required by Ninth Circuit Rule 33-1, and a certificate notifying the district court that no transcript would be ordered for use on appeal.

"The requirement of a timely notice of appeal is mandatory and jurisdictional." Munden v. Ultra-Alaska Associates, 849 F.2d 383, 386 (9th Cir. 1988). A notice of appeal filed while a timely Rule 59 motion is pending is premature and has no effect. Id.; Fed. R. App. P. 4(a) (4). Here, Sheppard's timely motion to reconsider under Rule 59(e) was still pending when he filed his notice of appeal on April 27, 1989. Therefore, his notice of appeal was ineffective. Lewis v. United States Postal Service, 840 F.2d 712, 713 (9th Cir. 1988). In order to secure appellate review, Sheppard was required to file a new notice of appeal within 60 days of the district court's denial of his reconsideration motion. Fed. R. App. P. 4(a) (1). Sheppard failed to do so, and we dismiss for lack of jurisdiction.

Sheppard argues that this court nevertheless has jurisdiction because his civil appeals docketing statement and certificate of no transcript for appeal, filed after the district court denied the motion for reconsideration, should be construed as a proper notice of appeal. In the past, we have treated documents which are not denominated notices of appeal as a proper notice of appeal when they serve the essential purpose of showing that the party intended to appeal, are served on other parties to the litigation and are filed within the proper time period. Rabin v. Cohen, 570 F.2d 864, 866 (9th Cir. 1978) (stipulation and motion serve as notice of appeal); Allah v. Superior Court of California, 871 F.2d 887, 889 (9th Cir. 1989) (plaintiff's opening brief suffices for notice of appeal).

In Munden v. Ultra-Alaska Associates, 849 F.2d 383, 387-88 (9th Cir. 1988), we said:

However, when employing this more lenient standard, we have generally been faced with an appellant not represented by counsel, a situation where life or liberty is at stake, or "when the interests of substantive justice require it [ ] to disregard irregularities in the form or procedure for filing a notice of appeal." We will not extend any leniency that is not demanded by these cases to one where the party is represented by an attorney. Moreover, " [a] liberal construction of Rule (3) (a) cannot be allowed to nullify the plain provision of rule 4(a) (4) that a premature notice of appeal 'shall have no effect.' "

Munden, 849 F.2d at 387-88 (citations omitted). The Munden court went on to refuse to construe a civil appeals docketing statement as a notice of appeal where plaintiff was represented by counsel. Id. Where plaintiff is represented by counsel, a lenient standard for meeting Rule 4(a) (4)'s notice of appeal requirements will not be applied unless there are extraordinary circumstances. Hollywood v. City of Santa Maria, 886 F.2d 1228, 1232 (9th Cir. 1989).

Sheppard was represented by counsel throughout this case. We cannot characterize Sheppard's case as a case requiring lenient treatment. Munden, 849 F.2d at 388; Hollywood, 886 F.2d at 1232. Therefore, we refuse to construe the civil appeals docketing statement and the certificate as a notice of appeal. The appeal is dismissed for lack of jurisdiction.

DISMISSED.