437 F.2d 1098 (9th Cir. 1971), 24270, Song Jook Suh v. Rosenberg

Docket Nº:24270.
Citation:437 F.2d 1098
Party Name:SONG JOOK SUH, Appellant, v. George K. ROSENBERG, District Director, Immigration & Naturalization Service, Appellee.
Case Date:February 11, 1971
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1098

437 F.2d 1098 (9th Cir. 1971)

SONG JOOK SUH, Appellant,


George K. ROSENBERG, District Director, Immigration & Naturalization Service, Appellee.

No. 24270.

United States Court of Appeals, Ninth Circuit.

February 11, 1971

Page 1099

Hiram W. Kwan, Los Angeles, Cal., for appellant.

Robert L. Meyer, U.S. Atty., Frederick M. Brosio, Jr., Asst. U.S. Atty., Chief, Civ. Div., Carolyn M. Reynolds, Asst. U.S. Atty., Los Angeles, Cal., for appellee.

Before BARNES and DUNIWAY, Circuit Judges, and CROCKER, District judge. 1

BARNES, Circuit Judge:

This is an appeal of a summary judgment granted by the District Court in favor of appellee Rosenberg, thus affirming the finding of the Immigration and Naturalization Service that appellant did not qualify for a third preference classification as a professional.

At the outset, appellee raises objection to this Court's jurisdiction. Jurisdiction in the District Court was based on 28 U.S.C. § 2201 (Declaratory Judgment Act) and 5 U.S.C. 701 et seq. (Administrative act and 5 U.S.C. § 701 et seq. (Administrative Procedure Act). The summary judgment was entered September 16, 1968. On September 25, 1968, appellant moved pursuant to Rule 59 Fed.R.Civ.P. for a new trial. That motion was pending at the time the Notice of Appeal was filed, October 2, 1968. The motion for new trial was denied November 4, 1968. Appellee filed a Motion to Dismiss Appeal with this Court on August 11, 1969, on the ground that the Notice of Appeal was premature and therefore null. On August 26, 1969, this Court denied without prejudice the Motion to Dismiss. Appellee now renews that contention challenging the propriety of this Court's jurisdiction.

This civil appeal is taken pursuant to 28 U.S.C. § 1291. Rule 3 of the Federal Rules of Appellate Procedure requires that a Notice of Appeal be filed to effectuate jurisdiction in the appellate court. Rule 4 determines the timeliness of the filing. Rule 4(a) Fed.R.App.P. provides:

'The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the district court by any party pursuant to the Federal Rules of Civil Procedure hereafter enumerated in this sentence, and the full time for appeal fixed by this subdivision commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: * * * (4) denying a motion for a new trial under Rule 59.'

Thus the question is whether Appellant's Notice of Appeal was premature as filed, and therefore null.

In this case the notice of appeal stated that the appeal was from the judgment. On its face, the judgment was final and thus appealable. That judgment was never vacated or modified. The motion for a new trial merely postponed the time within which a notice of appeal was required to be filed. It is true that had the motion been granted, the judgment would have been vacated and a new judgment ultimately entered. That judgment would then have been the only appealable judgment, and the notice of appeal previously filed would have been aborted. Not so here. The motion was denied; the judgment stands; it is the only appealable judgment, it is the one to which the notice refers. To hold, under such circumstances, that the notice of appeal is void, and that we have no jurisdiction, would be technical in the extreme. Neither the decisions of the Supreme Court nor those of this Court require such a result.

Page 1100

Lemke v. United States, 1953, 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3 is closely in point. There, a convicted defendant was sentenced on March 10. He filed a notice of appeal on March 11. Judgment was not entered until March 14. No new notice of appeal was filed. This Court dismissed the appeal as premature. The Supreme Court reversed per curiam, saying: 'The notice of appeal filed on March 11, was, however, still on file on March 14 and gave full notice after that date, as well as before, of the sentence and judgment which petitioner challenged...

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