Unpublished Disposition, 923 F.2d 862 (9th Cir. 1990)
Annotate this CaseVirgil NELSON, Plaintiff-Appellant,v.Stephen NEELY, et al., Defendants-Appellees.
No. 89-15979.
United States Court of Appeals, Ninth Circuit.
Submitted Jan. 11, 1991.* Decided Jan. 15, 1991.
Before SNEED, HUG and NOONAN, Circuit Judges.
MEMORANDUM**
Virgil Nelson, a federal prisoner, appeals pro se the district court's dismissal of his action for declaratory and injunctive relief to prevent the state of Arizona from obtaining custody of him pursuant to the Interstate Agreement on Detainers (IAD), 18 U.S.C.App. III Sec. 2. Nelson contends that the district court erred in finding that he was collaterally estopped from bringing the IAD claim. We review de novo, Guild Wineries and Distilleries v. Whitehall Co., 853 F.2d 755, 758 (9th Cir. 1988) and vacate and remand.
On December 30, 1986, Nelson filed a complaint in the U.S. District Court for the Western District of Oklahoma challenging the authority of the state of Arizona to obtain custody of him under the IAD. The Oklahoma District Court resolved Nelson's complaint on the merits, denying him any relief. Nelson appealed the decision to the U.S. Court of Appeals for the Tenth Circuit.
On December 17, 1989, Nelson brought this action in the District Court of Arizona. On July 6, 1989, the Arizona district court found that the issue raised in Nelson's complaint was identical to the one raised and litigated in the Oklahoma district court and thus was barred by the doctrine of collateral estoppel.
On June 4, 1990, the Oklahoma Court of Appeals vacated and remanded the Oklahoma district court's decision.1 Accordingly, we vacate and remand so that the district court may reconsider Nelson's claim in light of the fact that collateral estoppel is no longer a bar.2
VACATED AND REMANDED.
The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit R. 36-3
See Nelson v. Carlson, 904 F.2d 560 (10th Cir. 1990)
After Nelson filed a notice of appeal in the district court, he apparently filed a motion under Fed. R. Civ. P. 60(b) asking the district court to consider his claim on the merits because collateral estoppel no longer bars his claim. At the same time, he filed a "Motion for Abatement" in this court, asking that the district court be given an opportunity to consider his 60(b) motion and the merits of his claim
In this circuit, the filing of appeal divests the district court of jurisdiction to dispose of a 60(b) motion filed after the notice of appeal. Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir. 1984). "To seek Rule 60(b) relief, the proper procedure is to ask the district court whether it wishes to entertain the motion, or to grant it, an then move this court, if appropriate, for remand of the case." Id. (quotation omitted).
Here, the district court lacks jurisdiction to consider Nelson's 60(b) motion because he previously filed a notice of appeal. Id. Rather than requiring the district court to clarify whether it wishes to entertain the 60(b) motion before we remand the case, we remand now to avoid unnecessarily prolonging the period before the district court is able to evaluate Nelson's claim in light of the fact that collateral estoppel is no longer a bar.
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