Unpublished Disposition, 861 F.2d 268 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 861 F.2d 268 (9th Cir. 1987)

John SHANNON and Franklin Mathias, Plaintiffs-Appellants,v.COMMISSIONER OF INTERNAL REVENUE SERVICE, Defendant-Appellee.

No. 87-4148.

United States Court of Appeals, Ninth Circuit.

Submitted*  Aug. 24, 1988.Decided Oct. 24, 1988.

Before KOELSCH, KILKENNY and FARRIS, Circuit Judges.


This is a pro se appeal from a dismissal for want of jurisdiction of a complaint filed by two tax protesters. Judgment of dismissal was entered on May 29, 1987; a petition for rehearing was filed on June 17, 1987; and, following the district court's denial of that petition on August 25, 1987, the appellants filed their notice of appeal.

Because the appellants did not file their notice of appeal within 60 days of the district court's entry of judgment of dismissal, their appeal is untimely as to that judgment unless their petition for rehearing can be construed as something that would have tolled the time for filing their appeal. See Fiester v. Turner, 783 F.2d 1474, 1475-76 (CA9 1986) (construing untimely motion to reconsider under both FRCivP 59(3) and 60(b)). Their petition for rehearing cannot be construed as a motion to alter or amend the judgment of dismissal because it was not served within the requisite ten days. See FRCivP 59(e); Fiester, 783 F.2d at 1475. Similarly, the appellants' petition cannot be construed as a motion for relief from judgment because they alleged neither extraordinary circumstances nor any other ground available under FRCivP 60(b).1  See Fiester, 783 F.2d at 1476.

In light of the above, and because of the untimely nature of the appellants' notice of appeal, this court lacks jurisdiction to entertain the appeal. See FRAP 4(a) (1); Munden v. Ultra-Alaska Assocs., 849 F.2d 383, 386 (CA9 1988) (timely filing of notice of appeal mandatory and jurisdictional).



The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument per FRAP 34(a) and CA9 Rule 34-4


This disposition is inappropriate for publication and may not be cited to or by the courts of this Circuit except as provided by CA9 Rule 36-3


Even if the untimely petition for rehearing could be viewed as a motion under FRCivP 60(b), the order denying the petition would be reviewable only for an abuse of discretion; i.e., we could not review the underlying judgment for error. See Fiester, 783 F.2d at 1476 (citing Cel-A-Pak v. California Agric. Labor Relations Bd., 680 F.2d 664, 668 (CA9), cert. denied, 459 U.S. 1071 (1982))