Unpublished Dispositiondianna Cooper, Plaintiff-appellant, v. Margaret Heckler, Secretary of Health and Human Services,defendant-appellee, 787 F.2d 589 (6th Cir. 1986)

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US Court of Appeals for the Sixth Circuit - 787 F.2d 589 (6th Cir. 1986)



S.D. Ohio



The Plaintiff appeals the judgment affirming the Secretary's denial of social security disability benefits.

The record shows the district court entered its judgment on November 7, 1985. Six days later, the plaintiff served upon opposing counsel a motion to alter or amend the judgment under Rule 59, Federal Rules of Civil Procedure. While that timely-served motion was pending, the plaintiff filed a notice of appeal on December 24, 1985. The district court denied the Rule 59 motion on January 7, 1986.

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 plaintiff's notice of appeal filed on December 24, 1985, is a nullity and confers no jurisdiction on this Court. Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982). Therefore,

It is ORDERED that this appeal be and it hereby is dismissed from the docket of this Court. Rule 9(d) (1), Rules of the Sixth Circuit.