Unpublished Disposition, 916 F.2d 716 (9th Cir. 1989)

No. 89-35885.

United States Court of Appeals, Ninth Circuit.

Before CANBY and TROTT, Circuit Judges, and LEGGE,^**  District Judge.

MEMORANDUM^*** 

G. Donald Massey brought this action against the Bureau of Land Management (BLM) and others,¹  alleging that the BLM had searched his mining location without a warrant, in violation of the fourth amendment and the due process and equal protection clauses, and that it had seized his mining rights without notice, in violation of the fourth and fourteenth amendments. He also sought to enjoin the BLM from interfering with his decisions concerning access of third persons to his mining claim. The BLM counterclaimed, alleging that Massey had illegally cut and sold timber from his claim, had paid no part of the $28,556 previously assessed against him in district court for timber trespass, had violated a previous injunction, and was otherwise unlawfully interfering with or hampering the BLM.

After a series of procedural failures on the part of Massey, the district court granted the BLM's motion for a default on November 15, 1989. On November 28, 1989, before any judgment was entered, Massey filed a notice of appeal. At the same time, he filed in the district court an "objection of proposed judgment." Later, on December 7, 1989, the district court entered a judgment dismissing Massey's claim, granting the BLM's counterclaim, and enjoining Massey from residing on, removing timber from, or exercising control over certain mining claims. Massey filed no further notice of appeal.

We dismiss this appeal for lack of jurisdiction. The requirement of a timely notice of appeal is jurisdictional. Hollywood v. Santa Maria, 886 F.2d 1228, 1230 (9th Cir. 1989). Massey's notice of appeal, filed after the mere order of a default, was premature and ineffective. See Baker v. Limber, 647 F.2d 912, 916 (9th Cir. 1981).

It is true that when a judgment is announced that is in fact final, a notice of appeal is effective when filed after the announcement but before the final judgment is formally entered. Fed. R. App. P. 4(a) (2). That is not, however, the situation presented by this case. At the time that the default against Massey was ordered, the district court had not yet formulated or announced its injunction, which is a major subject of Massey's attempted appeal. No final judgment had been announced. See Baker v. Limber, 647 F.2d at 916 (no final judgment when default is ordered but amount of damages remains to be ascertained). Rule 4(a) (2) is therefore of no assistance to Massey; it "applies only to a decision that will be final upon its entry. It will not rescue a premature appeal that is filed before the announcement of a final decision." Marsh-McBirney, Inc. v. Montedoro-Whitney Corp., 882 F.2d 498, 503 (Fed. Cir. 1989) (citation omitted).

APPEAL DISMISSED.