Song Jook Suh v. Rosenberg

• Decision Date: 11 February 1971
• Docket Number: No. 24270.,24270.
• Citation: 437 F.2d 1098
• Parties: SONG JOOK SUH, Appellant, v. George K. ROSENBERG, District Director, Immigration & Naturalization Service, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

437 F.2d 1098 (1971)

SONG JOOK SUH, Appellant, v. George K. ROSENBERG, District Director, Immigration & Naturalization Service, Appellee.

No. 24270.

United States Court of Appeals, Ninth Circuit.

February 11, 1971.

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.^*

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 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.

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. We think the irregularity is governed by Rule 52(a) which reads `Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.'" (Id. at 326, 74 S.Ct. at 1.) That language is applicable here.

Also closely in point is Foman v. Davis, 1962, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222. On December 19, a judgment was entered dismissing the complaint. On December 20, appellant filed a motion to vacate. On January 17, he filed a notice of appeal from the December 19 judgment. On January 23, the Court denied the motion to vacate. On January 26, appellant filed a notice of appeal from the January 23 order. The Court of Appeals dismissed, reasoning that because of the pendency of the motion the first notice of appeal was premature and that the second notice of appeal did not purport to be from the judgment, but only from the later order. Speaking through Mr. Justice Goldberg, the Supreme Court reversed. He said: "With both notices of appeal before it (even granting the asserted ineffectiveness of the first), the Court of Appeals should have treated the appeal from the denial of the motions as an effective, although inept, attempt to appeal from the judgment sought to be vacated. Taking the two notices and the appeal papers together, petitioner's intention to seek review of both the dismissal and the denial of the motions was manifest."

* * * * * *

"It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities. `The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.' Conley v. Gibson, 355 U.S. 41, 48 78 S.Ct. 99, 2 L.Ed.2d 80. The Rules themselves provide that they are to be construed `to secure the just, speedy, and inexpensive determination of every action.' Rule 1." (Id. at 181-182, 83 S.Ct. at 229-230.)

These comments are also applicable here.

See also: United States v. Arizona, 1953, 346 U.S. 907, 74 S.Ct. 239, 98 L. Ed. 405, summarily reversing this Court's decision reported at 206 F.2d 159; Hoiness v. United States, 1948, 335 U.S. 297, 69 S.Ct. 70, 93 L.Ed. 16.

United States v. Crescent Amusement Co., 1944, 323 U.S. 173, 65 S.Ct. 254, 89 L.Ed. 160, does not require a different result. There, judgment was entered on May 17. Motions to amend the judgment were filed. While the motions were pending, appeal by the United States was allowed. Thereafter, the court ruled on the motions, following which a second appeal was allowed. Appellees moved to dismiss on the ground that the first appeal was premature and that the second appeal was void because the court lost jurisdiction to allow it when it allowed the first. The Court, however, refused to permit appellee to draw this circle. It agreed that the first appeal was premature, so that the trial court retained jurisdiction to allow the second. It dismissed the first appeal, but not the second. The case closely resembles Foman v. Davis, supra. It is not authority for treating a prematurely filed notice as void for all purposes. The Court had no occasion to say what it would have done if the second appeal had not been allowed.

A line of recent decisions by this Court also points to a holding that the appeal was validly taken in this case.

In Firchau v. Diamond National Corporation, 9 Cir., 1965, 345 F.2d 269, the trial court granted a motion to dismiss the complaint on June 25. On July 21, a notice of appeal from that order was filed. On July 24, a judgment dismissing the action was entered. No further notice of appeal was filed. We held that the June 25 order was not appealable, but that the July 21 notice should be treated as an appeal from the July 24 judgment, "overlooking as a technical defect not affecting substantial rights, the premature filing of that notice" (Id. at 271). We cited Lemke, supra, noting that Rule 61, F.R.Civ.P. is similar to Rule 52(a) F.R.Crim.P., relied upon in Lemke. Surely, if the premature notice in Firchau is good, although it referred only to a non-appealable order rather than to the judgment, which was non-existent when the notice was filed, a fortiori the notice of appeal here, which does refer to the judgment, was good, or at least became good when the motion that temporarily suspended the judgment's finality was denied.

Ruby v. Secretary of Navy, 9 Cir., 1966, 365 F.2d 385 (in banc) is also in point. There, a motion to dismiss the complaint was ordered granted on June 17. On July 14, notice of appeal from the order was filed. On August 3, judgment dismissing the action was entered. No further notice of appeal was filed. We followed Firchau and held that the appeal was good. We also held that the premature notice of appeal did not deprive the Court of jurisdiction to enter the judgment. Thus the notice was ineffective to affect the trial court's jurisdiction, but became effective when the appealable judgment was entered.

See also Curtis Gallery & Library, Inc. v. United States, 9 Cir., 1967, 388 F.2d 358, 360; Eason v. Dickson, 9 Cir., 1968, 390 F.2d 585, 587-588.

We hold: 1. Because of the pendency of the motion for a new trial, the notice of appeal did not become effective when filed, and the trial court retained jurisdiction of the case. 2. When the motion for a new trial was denied, the judgment became final. 3. The notice of appeal, which expressly referred to that judgment, remained on file, and became effective when the judgment became final. We therefore have jurisdiction of the appeal, and the motion to dismiss is denied.

Insofar as our decisions in Segundo v. United States, 9 Cir., 1955, 221 F.2d 296, and Reconstruction Finance Corp. v. Mouat, 9 Cir., 1950, 184 F.2d 44, are inconsistent with the results that we reach, we think that they must be treated as no longer good law by reason of the...