759 F.2d 461 (5th Cir. 1985), 83-3761, Fischer v. United States Dept. of Justice

Docket Nº83-3761.
Citation759 F.2d 461
Party NameFrank Edward FISCHER, III, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants-Appellees.
Case DateMay 03, 1985
CourtUnited States Courts of Appeals, United States Court of Appeals (5th Circuit)

Page 461

759 F.2d 461 (5th Cir. 1985)

Frank Edward FISCHER, III, Plaintiff-Appellant,

v.

UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants-Appellees.

No. 83-3761.

United States Court of Appeals, Fifth Circuit

May 3, 1985

Page 462

[Copyrighted Material Omitted]

Page 463

Frank E. Fischer, III, pro se.

Reta M. Strubhar, Patrick C. Jackson, El Reno, Okl., for Canadian County, et al.

Susan Scott Hunt, Asst. Dist. Atty., John P. Valz, U.S. Atty., Roy F. Blondeau, Jr., New Orleans, La., for U.S. Dept. of Justice.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE, RUBIN, and RANDALL, Circuit Judges.

PER CURIAM:

The district court, on August 5, 1983, signed an order granting the defendants-appellees' motions to dismiss Frank Edward Fischer's civil rights complaint. Thereafter, the district court, on August 10, 1983, entered judgment in favor of the defendants-appellees. Fischer appeals from that judgment.

In February of 1984, the defendants-appellees moved to dismiss this appeal on the ground that Fischer's notice of appeal was untimely. On February 28, 1984, a motions panel of this court denied the motions to dismiss, but did not file an opinion assigning reasons for its decision. We of course are not necessarily bound by that decision. See EEOC v. Neches Butane Products Co., 704 F.2d 144, 145 (5th Cir.1983) ("A denial by a motions panel of a motion to dismiss for want of jurisdiction, however, is only provisional."). Upon reconsideration of the issue, we conclude that it is impossible to determine the existence of appellate jurisdiction from the record before us. Therefore, we must remand the case to the district court.

Officers and agents of the United States are among the defendants-appellees in this case. 1 Therefore, according to Rule 4, Fed.R.App.P., Fischer's notice of appeal must have been filed within sixty days after

Page 464

the date of the entry of judgment, unless the sixty-day period was tolled by a timely postjudgment motion of the type enumerated in Rule 4(a)(4), Fed.R.App.P. The sixty-day period in this case expired on October 7, 1983. Fischer did not file a notice of appeal in the district court until October 26, 1983. Fischer has, however, filed two documents in this case that may well operate to preserve his right to appeal. On August 15, 1983, Fischer filed in the district court what purports to be a Rule 60(b), Fed.R.Civ.P., motion for relief from judgment. On September 20, 1983, he filed a "Motion to Appeal In Forma Pauperis" with the clerk of this court.

Fischer's motion to proceed in forma pauperis was filed in this court on September 20, 1983, well within the sixty-day period. Under well-settled principles, a timely motion to proceed in forma pauperis on appeal is the substantial equivalent of a notice of appeal and is effective to invoke appellate jurisdiction. See, e.g., Robbins v. Maggio, 750 F.2d 405, 408-09 (5th Cir.1985). 2 Moreover, the fact that Fischer mistakenly filed the motion in this court, rather than in the district court, is of no moment. Rule 4(a)(1) provides that, "[i]f a notice of appeal is mistakenly filed in the court of appeals, the clerk of the court of appeals shall note thereon the date on which it was received and shall transmit it to the clerk of the district court and it shall be deemed filed in the district...

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23 practice notes
  • 942 F.2d 130 (2nd Cir. 1991), 1394, City of Hartford v. Chase
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • 14 Agosto 1991
    ...a motion to reargue, a motion to vacate, or a motion to set aside the judgment."); cf. Fischer v. United States Dep't of Justice, 759 F.2d 461, 464 (5th Cir.1985) (per curiam) (finding that, because the appellant's motion under Rule 60(b) "call[ed] into question the correctness of......
  • 507 So.2d 41 (Miss. 1987), 56440, Belhaven Imp. Ass'n, Inc. v. City of Jackson
    • United States
    • Mississippi Supreme Court of Mississippi
    • 18 Marzo 1987
    ...Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th Cir.1986); Fischer v. United States Department of Justice, 759 F.2d 461, (5th Cir.1985). II. The principal question presented to this Court is whether or not BIA has standing on this appeal. It contends that the lower......
  • 807 F.2d 1239 (5th Cir. 1987), 86-4474, Brown v. United Ins. Co. of America
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 20 Enero 1987
    ...McGoldrick Oil Co. v. Campbell, Athey & Zukowski, 793 F.2d 649, 652-53 (5th Cir.1986); Fisher v. United States Department of Justice, 759 F.2d 461, 465-66 (5th Cir.1985); Lapeyrouse v. Texaco, Inc., 670 F.2d 503, 505-06 (5th Cir.1982). 3 See also Alvestad v. Monsanto Co., 671 F.2d 908, ......
  • 835 F.2d 580 (5th Cir. 1988), 86-3783, Northshore Development, Inc. v. Lee
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 12 Enero 1988
    ...in the Board. [17] 12 U.S.C. Sec. 1464(d)(6)(C) (1982) (emphasis added). [18] 793 F.2d 1289 (5th Cir.1986). [19] Fischer v. United States, 759 F.2d 461, 463 (5th Cir.1985); E.E.O.C. v. Neches Butane Prods. Co., 704 F.2d 144 (5th...
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23 cases
  • 942 F.2d 130 (2nd Cir. 1991), 1394, City of Hartford v. Chase
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (2nd Circuit)
    • 14 Agosto 1991
    ...a motion to reargue, a motion to vacate, or a motion to set aside the judgment."); cf. Fischer v. United States Dep't of Justice, 759 F.2d 461, 464 (5th Cir.1985) (per curiam) (finding that, because the appellant's motion under Rule 60(b) "call[ed] into question the correctness of......
  • 507 So.2d 41 (Miss. 1987), 56440, Belhaven Imp. Ass'n, Inc. v. City of Jackson
    • United States
    • Mississippi United States State Supreme Court of Mississippi
    • 18 Marzo 1987
    ...Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th Cir.1986); Fischer v. United States Department of Justice, 759 F.2d 461, (5th Cir.1985). II. The principal question presented to this Court is whether or not BIA has standing on this appeal. It contends that the lower......
  • 807 F.2d 1239 (5th Cir. 1987), 86-4474, Brown v. United Ins. Co. of America
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (5th Circuit)
    • 20 Enero 1987
    ...McGoldrick Oil Co. v. Campbell, Athey & Zukowski, 793 F.2d 649, 652-53 (5th Cir.1986); Fisher v. United States Department of Justice, 759 F.2d 461, 465-66 (5th Cir.1985); Lapeyrouse v. Texaco, Inc., 670 F.2d 503, 505-06 (5th Cir.1982). 3 See also Alvestad v. Monsanto Co., 671 F.2d 908, ......
  • 835 F.2d 580 (5th Cir. 1988), 86-3783, Northshore Development, Inc. v. Lee
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (5th Circuit)
    • 12 Enero 1988
    ...in the Board. [17] 12 U.S.C. Sec. 1464(d)(6)(C) (1982) (emphasis added). [18] 793 F.2d 1289 (5th Cir.1986). [19] Fischer v. United States, 759 F.2d 461, 463 (5th Cir.1985); E.E.O.C. v. Neches Butane Prods. Co., 704 F.2d 144 (5th...
  • Request a trial to view additional results