Case Information
*1 Before WOLLMAN, HANSEN, Circuit Judges, and KYLE, District Judge. [*]
_____________
HANSEN, Circuit Judge.
Frankie Schwartz appeals the district court's grant of summary [1] judgment to defendants, Tom William Pridy and Ronald Keck, on the basis of qualified immunity in this suit filed pursuant to 42 U.S.C. §§ 1983 and 1985. Schwartz claims the defendants violated his civil rights when they knowingly made false statements
* The HONORABLE RICHARD H. KYLE, United States District
Judge for the District of Minnesota, sitting by designation.
The Honorable George F. Gunn, Jr., United States District Judge for the Eastern District of Missouri.
in a affidavit supporting an application for a search warrant for Schwartz's business. Pridy has filed a motion to dismiss this appeal on jurisdictional grounds. We deny the motion to dismiss and affirm the district court's grant of summary judgment.
I.
Defendant Tom William Pridy is a special agent for the Criminal Investigations Bureau of the Missouri Department of Revenue (DOR), whose responsibilities include investigating violations of the Missouri motor vehicle statutes. Pridy was assigned to investigate whether Frankie Schwartz owned and operated a used car and auto parts business without a license. See Mo. Rev. Stat. § 301.218 (1994) (requiring licenses for salvage businesses). In the course of Pridy's investigation, he contacted Defendant Ronald Keck, a Missouri State Highway Patrol Trooper, who, among other things, checks the compliance of salvage yards and salvage yard dealers with the Missouri statutes and regulations.
In May 1991, Pridy met with a special prosecuting attorney who was handling the criminal case against Schwartz arising out of his alleged unlicensed operation of the automobile salvage yard. Despite statutory [2] authority to search Schwartz's business premises without a warrant, see id. § 301.225 (authorizing warrantless inspections of salvage business records and premises for the purpose of enforcing salvage business laws), the special prosecutor filled out three documents: an application for a search warrant, an affidavit, and a search warrant. All three completed documents referred to information Officer Keck had received from an informant regarding stolen cars and car parts allegedly kept at Schwartz's business place. The affidavit also contained information about Schwartz's operation of his business without a license. Pridy
The criminal prosecution was dropped in November 1991, when 2
Schwartz obtained a license for his salvage business. *3 signed the affidavit and the application for a search warrant, noting on both documents that he was a DOR special agent. Keck did not sign the documents.
The documents were submitted to a state circuit judge, who issued a search warrant. Pursuant to the warrant, Pridy searched the business records, and Keck and several other officers searched the premises. Nothing was seized.
The three documents that were presented to the state judge have at some point in time been altered with an uninitialed line deleting the references to stolen cars and car parts. The parties dispute when the documents were altered. Pridy and Keck, as well as the special prosecutor, claim that all the references to stolen items had been crossed out before the documents were submitted to the judge. Schwartz contends the documents were altered after the defendants obtained the search warrant.
Schwartz brought this suit pursuant to 42 U.S.C. §§ 1983 and 1985, alleging, inter alia, that the defendants knowingly made false statements in their affidavit and application for the search warrant, namely, that Schwartz was storing stolen cars and car parts at his place of business and that Pridy was a "peace officer" in the State of Missouri. Keck then filed a counterclaim against Schwartz based on various state law theories. On January 18, 1995, after dismissing pursuant to Federal Rule of Civil Procedure 12(b)(6) Schwartz's claims that failed to state a cause of action, the district court granted the defendants summary judgment on the remaining § 1983 claim on the basis of qualified immunity. Schwartz then filed a motion styled as a "Motion for Reconsideration," citing Federal Rule of Civil Procedure 54(b). On October 13, 1995, the court dismissed Keck's counterclaim and Schwartz's motion for reconsideration. Schwartz appeals the district court's grant of summary judgment. Pridy moves to dismiss the appeal for lack of jurisdiction.
II.
A. Appellate Jurisdiction
As a preliminary matter, we must first address the issue of our jurisdiction over this appeal. In his motion to dismiss the appeal, Pridy argues that Schwartz failed to file a timely notice of appeal, as required by Federal Rule of Appellate Procedure 4.
The district court granted the defendants summary judgment with regard to Schwartz's claim on January 18, 1995, but did not at that time decide Keck's counterclaim. On February 2, 1995, Schwartz filed a motion for reconsideration of the summary judgment. The motion for reconsideration and the counterclaim were still pending when Schwartz filed his notice of appeal on February 21, 1995. Seven months later, on October 13, 1995, the district court dismissed the counterclaim and denied Schwartz's motion for reconsideration. On October 18, 1995, Schwartz attempted to file a second notice of appeal, mailing it to the district court clerk of court and mailing copies of it to the defense attorneys. The clerk's office returned the notice, however, stating that it had already received Schwartz's earlier notice of appeal.
Generally, a party in a civil case must file its notice of appeal
"within 30 days after the date of entry of the judgment or order appealed
from." Fed. R. App. P. 4(a)(1). "This 30-day time limit is `mandatory and
jurisdictional.'" Browder v. Director, Dep't of Corrections of Ill., 434
U.S. 257, 264 (1978). A party may toll the 30-day time period, however,
by filing a motion under either Rule 59(e) or Rule 60(b) of the Federal
Rules of Civil Procedure within 10 days after the district court has
entered a final judgment. Fed. R. App. P. 4(a)(4)(C), (F); United States
v. Duke,
In the instant case, Schwartz did not technically file a timely
notice of appeal, because he filed his notice when the district court had
not yet entered a final judgment on the counterclaim. See Thomas v.
Basham,
Notwithstanding a party's failure to meet the requirements of Rule
4(a)(1), however, appellate jurisdiction may lie in certain situations
under the doctrine of "unique circumstances." Thompson v. INS, 375 U.S.
384, 386-87 (1964). Under this doctrine, appellate jurisdiction exists
when a party's failure to file a timely notice of appeal is the result of
good faith reliance on a mistaken statement or assurance of the district
court. Id. In Osterneck v. Ernst & Whinney, the Supreme Court explained
this narrow exception to the formalistic application of Rule 4(a)(1) as one
applying only when the party has relied on a judicial officer's "specific
assurance" that his notice of appeal has been timely filed.
is timely, however, fairness dictates that we deem the notice to be timely filed. See id. at 178-79. [3]
We believe the doctrine of unique circumstances applies to this case.
On October 18, 1995, five days after the district court entered its final
judgment and its decision on Schwartz's motion to reconsider, Schwartz
properly attempted to file a timely notice of appeal. The clerk's office
returned the notice, attaching a message that the clerk had already
received both the filing fee and the notice of appeal. Schwartz relied in
good faith on the clerk of court's erroneous refusal to accept his timely
notice of appeal and on the clerk's erroneous representation that his
premature notice of appeal was sufficient. Under these unique
circumstances, we deem the notice to be sufficient to vest jurisdiction in
this court. Cf. Neu Cheese Co. V. FDIC,
B. Substantive Arguments
Having thus established our jurisdiction, we turn to the substantive issue of whether summary judgment was appropriate in this case. The district judge granted the defendants' motion for summary judgment on the following bases: (1) the defendants had not
We note that because four justices rejected the unique 3
circumstances doctrine in a dissent, see Houston v. Lack, 487
U.S. 266, 282 (1988) (Scalia, J., dissenting), the continued
vitality of the doctrine has been questioned; however, because
the Supreme Court has not specifically overruled Thompson, and
instead chose in 1989 to distinguish that case in Osterneck, we
apply the doctrine as good law. Accord In re Mouradick, 13 F.3d
326, 329 n.5 (9th Cir. 1994); United States v. Heller, 957 F.2d
26, 28-29 (1st Cir. 1992); Pinion v. Dow Chemical, U.S.A., 928
F.2d 1522, 1530 (11th Cir.), cert. denied,
We review the district court's grant of summary judgment de novo,
applying the same standards as did the district court. Thomason v. Scan
Volunteer Serv., Inc.,
Schwartz argues that the defendants violated his clearly established civil rights by "the presentation to the state judge, for purposes of obtaining a search warrant, of false allegations of criminal conduct by plaintiff, knowing them to be false," thereby causing injury to Schwartz. (Appellant's Br. at 9.) Schwartz specifically alleges that Pridy knowingly lied in the application, affidavit, and search warrant regarding the stolen cars and parts allegedly kept at Schwartz's place of business. He further avers that the defendants presented the documents in their original form to the trial judge in order to obtain a search warrant and later altered the documents to cover their tracks. Schwartz asserts that *8 Pridy was not authorized under Missouri law to apply for a search warrant, because he is not a "peace officer." See Mo. Rev. Stat. § 542.276.1 (stating that peace officers and prosecuting attorneys may apply for search warrants); id. § 590.100(4) (defining "peace officer"). Finally, he alleges that the defendants knowingly engaged in these misrepresentations to "punish and humiliate [Schwartz] and to damage his reputation." (Appellant's Br. at 11.)
Schwartz's argument fails for several reasons. First, assuming, as
we must, that the defendants knowingly misrepresented to the state judge
the facts concerning stolen cars and auto parts, the misrepresentation did
not result in a search in violation of the Fourth Amendment, because the
search was valid even without a warrant. Mo. Rev. Stat. § 301.225; New
York v. Burger, 482 U.S. 691, 702 (1987) (upholding a statute that
authorizes warrantless searches for salvage yards). Second, no Fourth
Amendment violation occurred here because the unchallenged portions of the
warrant application and the affidavit, which allege that Schwartz was
operating an unlicensed salvage business, established probable cause for
a search. See United States v. Johnson,
In sum, this record, viewed in the light most favorable to Schwartz,
does not support his claim that the defendants violated
*9
a clearly established Fourth Amendment right against unreasonable searches.
To the extent that Schwartz contends the alleged misrepresentations damaged
his reputation, we note that defamation is not a cognizable constitutional
tort. Siegert v. Gilley,
Accordingly, we deny the motion to dismiss and affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.