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Wort v. Vierling

*fn*: November 21, 1985.

LORETTA WORT, PLAINTIFF-APPELLEE,
v.
WILLIAM VIERLING, ET AL., DEFENDANTS-APPELLANTS



Appeal from the United States District Court for the Central District of Illinois, Springfield Division, No. 82 C 3169 - Harold A. Baker, Judge.

Author: Cummings

Before CUMMINGS, Chief Judge, BAUER and RIPPLE, Circuit Judges

CUMMINGS, Chief Judge

This is an appeal by defendants-appellants from the denial of a post-judgment motion which sought to vacate an award of attorney's fees under 42 U.S. C. § 1988. We are without jurisdiction to review the propriety of the denial of the motion because the notice of appeal was not timely. Therefore, the appeal is dismissed.

I.

On May 26, 1982, Wort, a high school student, filed a civil rights action against her school district and others contesting her dismissal from the National Honor Society. She was selected for membership in March 1981, became pregnant in July 1981, and was married in October 1981. She was dismissed from the NHS in February 1982 for deficiency of leadership and character, allegedly because of her premarital pregnancy. Her complaint alleged that she had been discriminated against on the basis of sex and dismissed from the Society because of her pregnancy. Her complaint sought, among other things, immediate reinstatement to the NHS, a temporary restraining order, and a request for attorneys' fees and costs. The motion for a temporary restraining order was denied by Judge Ackerman on May 28, 1982.

The case proceeded to a bench trial. On September 4, 1984, Judge Ackerman issued an order finding that the defendants had discriminated against Wort on the basis of sex in violation of Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et seq.) and the Fourteenth Amendment. The defendants were ordered to reinstate Wort in the NHS.

On December 3, 1984, Wort's attorneys filed an application for costs, expenses, and attorneys' fees pursuant to 42 U.S.C. § 1988. Defendants filed a response, but did not request a hearing on the matter even though Judge Ackerman died between the trial and the motion for fees and costs. On January 29, 1985, Judge Baker entered an order granting Wort's application for costs, expenses, and attorneys' fees. The court awarded attorneys' fees in the amount of $19,567.50 and costs in the amount of $1,553.32.

On February 12, 1985, defendants served a motion to vacate and for hearing on application for costs, expenses, and attorneys' fees. The district court denied the motion on April 19, 1985. Defendants filed their notice of appeal on May 14, 1985. Wort contends that we lack jurisdiction over defendants' appeal because their notice of appeal was untimely.

II.

The order granting Wort attorneys' fees and costs was entered on January 29, 1985. Rule 4(a), Fed. R. App. P., requires that notice of appeal be filed within thirty days of the entry of a final order. A court of appeals may not enlarge this time period. Fed. R. App. p. 269(b). Timely filing of an notice of appeal is mandatory and jurisdictional. United States v. Robinson, 361 U.S. 220, 229, 4 L. Ed. 2d 259, 80 S. Ct. 282 (1960). Defendants filed their notice of appeal on May 14, 1985, one hundred and five days after the district court's order was entered.

The notice of appeal was, however, filed within thirty days from the district court's denial of the defendants' motion to vacate. A timely motion to alter or amend the judgment filed with the district court under Rule 59(e), Fed. R. Civ. P., will toll the running of the thirty days. Fed. R. App. P. 4(a)(4). But Rule 59(e) provides that such a motion must be brought within ten days after the entry of the judgment. Here defendants' motion was entitled "motion to vacate and for hearing on application of costs, expenses and attorneys' fees" and was served fourteen days after the district court's order.*fn1 Since defendants' motion was not filed within ten days after the entry of the order, it was not timely and did not toll the thirty days.

Defendants' untimely motion to vacate and their failure to file a notice of appeal within thirty days of the district court's order leaves us without jurisdiction. But defendants argue that this case falls within the exception established by Thompson v. Immigration and Naturalization Service, 375 U.S. 384, 11 L. Ed. 2d 404, 84 S. Ct. 397 (1964) (per curiam). In Thompson, post-trial motions under Rules 52 and 59 were filed twelve days after the entry of judgment. The notice of appeal filed would have been timely had the post-judgment motion tolled the appeals period. The moving party alleged that he relied upon opposing counsel's failure to raise a claim of untimeliness when the motions were filed and the district court's explicit statement that the Rule 59 motion was made "in ample time." The Court said that under these "unique circumstances" the case should be remanded to be heard on its merits. Id. 387.

We have applied the Thompson exception in cases where the district court gave explicit assurance that the motion was timely. In Needham v. White Laboratories, Inc., 639 F.2d 394, 398 (7th Cir.), cert. denied, 454 U.S. 927, 70 L. Ed. 2d 237, 102 S. Ct. 427 (1981), the defendant filed a post-trial motion for a judgment notwithstanding the verdict within ten days of the entry of judgment. The motion tolled the thirty-day limitation until the entry of the district court order denying the motion on January 14. On February 4, the defendant filed a motion for reconsideration of the January 14 denial of the motion for judgment notwithstanding the verdict. A motion to reconsider an order denying a timely post-trial motion does not toll the thirty-day limitation period that began to run when the first post-trial motion was denied. Id. at 397. Thus the defendant's notice of appeal filed on April 21 was untimely. But at the February 4 heairng on defendant's motion to ...


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