Henry v. Bronstein

OPINION PER CURIAM. Charles N. Henry, III, appeals from the district court’s orders: (1) dismissing his action against two Internal Revenue Service agents; (2) denying his motion for reconsideration; and (3) denying a second post-judgment motion requesting the district court to issue findings of fact and conclusions of law. We dismiss the appeal as to the first two orders; with respect to the third order, we affirm. When the United States or its officer or agency is a party, the notice of appeal must be filed no more than sixty days after the entry of the district court’s final judgment or order, Fed. R.App. P. 4(a)(1)(B), unless the district court extends the appeal period under Fed. RApp. P. 4(a)(5) or reopens the appeal period under Fed. R.App. P. 4(a)(6). This appeal period is “mandatory and jurisdictional.” Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960)). A timely motion for reconsideration under Fed.R.Civ.P. 59 tolls the notice of appeal period. Fed. R.App. P. 4(a)(1)(B). Here, the district court entered judgment on September 13, 2002. Henry’s motion for reconsideration was timely filed on September 23, 2002; thus, the appeal period did not begin to run until the district court denied the motion for reconsideration on October 1, 2002. The sixty-day appeal period expired on November 30, 2002. Notwithstanding Henry’s second post-judgment motion, his notice of appeal filed on January 9, 2003, was untimely as to the September 13, 2002, judgment and the October 1, 2002, order denying his motion for reconsideration. See Kraft, Inc. v. United States, 85 F.3d 602, 605 (Fed.Cir.) (holding that, following initial Fed.R.Civ.P. 59 motion tolling appeal period, successive motions periods are not permitted), modified on other grounds, 96 F.3d 1428 (Fed.Cir.1996); accord EEOC v. Cent. Motor Lines, Inc., 537 F.2d 1162, 1165 (4th Cir.1976). Accordingly, we dismiss the appeal as to those orders. Henry also appeals the district court’s November 19, 2002, order denying his motion requesting that the court enter findings of fact and conclusions of law. Findings of fact and conclusions of law are only required where there is a bench trial. See Fed.R.Civ.P. 52(a). Here, the court dismissed the complaint because it failed to state a claim upon which relief could be granted. We find no error in the district court’s order and therefore affirm. *899 We dispense with oral argument because the facts and legal contentions are adequately before the court and argument would not aid the decisional process. DISMISSED IN PART; AFFIRMED IN PART