Unpublished Dispositionlloyd E. Brofford, Plaintiff-appellant, v. Social Security Administration of the Department of Healthand Human Services, Office of Disabilityoperations; Social Securityadministration Office,lebanon, Ohio,defendants-appellees, 863 F.2d 883 (6th Cir. 1988)

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US Court of Appeals for the Sixth Circuit - 863 F.2d 883 (6th Cir. 1988) Dec. 2, 1988

Before KEITH and KRUPANSKY, Circuit Judges, and CONTIE, Senior Circuit Judge.


This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

A review of the record indicates that appellant filed a 42 U.S.C. § 1983 civil rights complaint alleging that he was denied Social Security benefits in 1966 and 1967. The complaint was dismissed by order entered September 9, 1988. A motion for reconsideration was served on September 14, 1988, and filed on September 16. The timely Rule 59(e) motion tolled the appeals period as prescribed by Fed. R. App. P. 4(a) (4). Marrical v. Detroit News, Inc., 805 F.2d 169, 171 (6th Cir. 1986) (per curiam); Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1102-03 (6th Cir. 1985); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016, 1018-20 (6th Cir. 1983). The September 16, 1988, notice of appeal filed prior to the disposition of the rule 59(e) motion is premature. Fed. R. App. P. 4(a) (4) provides that a notice of appeal filed before the disposition of a timely Rule 59(e) 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...." A timely notice of appeal is mandatory and jurisdictional. Acosta v. Louisiana Dep't of HHR, 478 U.S. 251 (1986) (per curiam); Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam).

It is ORDERED that the appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.