Appeal from the United States District Court for the District of Arizona. D.C. No. CV-84-00624-CAM. C.A. Muecke, District Judge, Presiding.
Before: Alfred T. Goodwin, Charles Wiggins, and Melvin Brunetti, Circuit Judges. Opinion by Judge Wiggins.
Mark Koch appeals from the district court's ruling on remand that his original notice of appeal was untimely. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse on the ground of Federal Rule of Appellate Procedure 4(c).
Mark Koch was one of several Arizona state prisoners who sued prison officials under 42 U.S.C. § 1983 for alleged violations of the prisoners' constitutional rights during an anal cavity search by prison guards. The case was tried before a jury, which found that prison officials had violated the prisoners' rights under the Fourth and Eighth Amendments, but that the prison officials were entitled to a defense of qualified immunity. Koch appealed, arguing that there was insufficient evidence to support the jury's finding of qualified immunity. Vaughan v. Ricketts, 950 F.2d 1464 (9th Cir. 1991).
The Vaughan court was unable to address the merits of Koch's appeal without first deciding whether Koch's notice of appeal was timely filed under Federal Rule of Appellate Procedure 4(a). Rule 4(a) establishes a thirty-day time limit for the filing of appeals that is both mandatory and jurisdictional. Bird v. Reese, 875 F.2d 256, 256-57 (9th Cir. 1989). Thus, absent timely filing, this court lacks jurisdiction over Koch's case. Koch's notice of appeal was received and file stamped by the district court clerk on August 8, 1990, nine days after the July 30, 1990 deadline established by Rule 4(a).
Ordinarily, a notice of appeal is deemed filed on the date the court clerk receives and stamps the notice. Fed. R. App. P. 4(a); Sudduth v. Arizona Attorney Gen., 921 F.2d 206, 206-207 (9th Cir. 1990). In Houston v. Lack, however, the Supreme Court established an exception to that rule for prisoners filing pro se appeals. 487 U.S. 266 (1988). Houston 's constructive filing rule held that a pro se prisoner's "notice of appeal was filed at the time petitioner delivered it to the prison authorities for forwarding to the court clerk." Id. at 276 (footnote omitted).
To determine whether Koch's appeal was timely under the Houston rule, we remanded for a determination of the date on which Koch's notice of appeal was mailed. Vaughan, 950 F.2d at 1467-68. The district court on remand did not determine that date. Instead, after an evidentiary hearing, the court held that Koch did not qualify for a constructive filing date under Houston because of the manner in which he mailed the notice. In Miller v. Sumner, 921 F.2d 202, 203 (9th Cir. 1990), we held that prisoners do not receive the benefit of the Houston rule if the notice of appeal is mailed in a regular mailbox in the prison rather than in a way that causes the prison authorities to post it through the prison mail log system. The district court held that Miller rendered Koch's mailing untimely. Koch (timely) appealed that ruling to this court.
The district court believed Koch was ineligible for Houston 's constructive filing deadline because he used regular mail (of which his prison did not keep a log) rather than registered, certified or insured mail, any of which was available to Koch for an extra fee, and any of which would have created documentation of the mailing date. In Miller, this court held that the prisoner is not entitled to the benefit of Houston 's constructive filing deadline if he chooses to use a mailing procedure that does not create documentation. 921 F.2d at 203.*fn1 The district court, applying Miller, held Koch's notice of appeal untimely.
After the district court's decision, however, section (c) was added to Rule 4 of the Federal Rules of Appellate Procedure. The new Rule 4(c) states:
If an inmate confined in an institution files a notice of appeal . . ., the notice of appeal is timely filed if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a notarized statement or by a declaration (in compliance with 28 U.S.C. § 1746) setting forth the date of deposit and stating that first-class postage has been prepaid.
The amendment became effective on December 1, 1993, while Koch's appeal was pending before this court. Rule 4(c) applies, "insofar as just and practicable," to appellate cases pending on the effective date. Order of the U.S. Supreme Court, 61 U.S.L.W. 4395 (U.S. Apr. 22, 1993). Because we see no reason why application of the new rule ...