Koniag, Inc. v. Kurt Kanam , 615 F. App'x 403 ( 2015 )

FILED
NOT FOR PUBLICATION
AUG 25 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KONIAG, INC., an Alaska corporation; No. 13-35759
MICHAEL P. O’CONNELL,
D.C. No. 3:12-cv-00077-SLG
Plaintiffs - Appellees,
v. MEMORANDUM*
KURT KANAM, individually and as
Tribal Attorney for the Native Village of
Karluk; ORBIE MULLINS, individually
and as Village of Karluk Tribal Court
Judge for the Karluk Tribal Court for the
Native Village of Karluk,
Defendants - Appellants.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Submitted August 11, 2015**
Anchorage, Alaska
Before: SCHROEDER, RAWLINSON, and MURGUIA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Native Village of Karluk tribal attorney Kurt Kanam and Karluk Tribal
Court Judge Orbie Mullins (collectively, Defendants) appeal the district court’s
order entered on July 29, 2013, granting partial summary judgment and a
permanent injunction in favor of Koniag, Inc. and Koniag’s attorney Michael P.
O’Connell. Because Defendants’ notice of appeal is untimely, we dismiss.
Defendants’ notice of appeal dated August 19, 2013, does not challenge a
final decision or interlocutory order. See 28 U.S.C. §§ 1291 (appeal of final
decision), 1292 (appeal of certain interlocutory orders).
Defendants’ amended notice of appeal dated September 26, 2013, challenges
an interlocutory order—the district court’s grant of a permanent injunction—but it
was filed more than thirty days after entry of the order appealed. See 28 U.S.C. §
2107(a); Fed. R. App. P. (FRAP) 4(a)(1)(A). The Appellate Commissioner
concluded that the “amended notice of appeal appears to be timely filed because
[Defendants’] . . . cross-complaint names a federal party to the underlying action.”
The Appellate Commissioner correctly cited 28 U.S.C. § 2107(b) and FRAP
4(a)(1)(B)(iv), which extends the deadline to file a notice of appeal to sixty days if
one of the parties is the United States, or “a current or former United States officer
or employee sued in an individual capacity . . .” However, the sixty-day filing
period does not apply in this case.
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Although Defendants filed a Cross Complaint that named federal officers or
employees, the district court did not act on the Cross Complaint because
Defendants failed to move for leave to amend to add those parties. In addition,
these federal officers or employees did not become parties because it appears that
they were not served, nor did the federal officers or employees “participate[]” in
the action or share an interest in the outcome of the appeal. In re Paris Air Crash
of March 3, 1974, 578 F.2d 264, 265 (9th Cir. 1978) (per curiam) (citations
omitted). Finally, the served Defendants were not federal employees. See Wallace
v. Chappell, 637 F.2d 1345, 1348 (9th Cir. 1981) (en banc) (per curiam)
(explaining that the 60-day filing period applies only if the defendants act under
government authority). Therefore, the amended notice of appeal was untimely.
Because we lack “jurisdiction to entertain an untimely notice of appeal,” we
must dismiss. Washington v. Ryan, 789 F.3d 1041, 1048 (9th Cir. 2015).
DISMISSED.
3