### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT APRIL 2, 2003 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ Nos. 02-11657 and 02-1 3797 Non-Argument Calendar

________________________ D. C. Docket No. 99-01001-CV-BBM-1 THOMAS JAMES MAHONE, Plaintiff-Appel lant,

versus WALTER S. RAY, Chairman, Board of Pardons an d Paroles, GARFIELD HAMMOND, JR., et al., Defendants-Appe llees.

________________________ Appeals from the United States District Court for the Northern D

istrict of Georgia

_________________________ (April 2, 2003) Before CARNE S, MARCUS and WILSON, C

ircuit Judges. MARCUS, Circuit Judge:1 Although Mahone did not specify

whether his motion for reconsideration was filed pursuant to Fed. R. Civ. P. 59(e

) or 60(b), we de

signate it as the

latter because

it was not fil ed w ith in 1 0 da ys of the judgment that it seeks to reopen. See Talano v. Northwestern Med. Faculty Found, I nc. , 273 F.3d 757, 762 (7 th Cir. 2001) (“When a motion to alter or amend a judgment under Rule 59(e) . . . is filed more than 10 days after entry of judgment[, it] automatically becomes a Rule 60(b) motion.”) (citationand

internal punctua

tion omitted); Finch v. City of Vernon , 845 F.2d 256, 258-59 (11 th Cir. 1988) (noting this “ten

day filing distinction”). Although we recognized in Finch that we previously have drawn a “substantive/collateral distinction,” 845 F.2d at 258-59, pursuant to which “Rule 59 applies to motions for reconsideration of matters encompassed in a decision on the merits o f the dispute, and not matters collateral to the merits,” we also said that this is not th e only poten

tially applicable

distinction between Rule 59 and Rule 60 reconsideration motions. See id. Here, because it was not filed within 10 days of the district cour t’s e ntry of judg

ment, Mahone’s mot

ion is cognizable

only as a motion for relief fro m judgment pursuant to Fed. R. Civ. P. 60(b). ComputerizedThermal Imag ing, Inc. v.

Bloomberg, L .P. , 312 F.3d 1292, 1296 n.3 (10 th Cir. 2002)

. Accordingly, we will so construe it. 2 Thomas Jam

es Mahone, a state

court prisoner proc eeding pro se , appeals the district court’s denial of his motions pursuant to Fed. R. Civ. P. 60(b) for relief from judgm

ent based on fraud an

d for reconsiderat

ion, 1 Fed. R. Civ. P . 11 for sanctions against Tr

acy D. Maste

rs, the Director

of Legal Servic es for the Georgia Board of Pardons and P aroles, and Fed. R. Civ. P. 56 fo r summary judgment. On appeal, Mahone argues that the district court erred by holding that it lacked subject matter juri sdiction over each of these motions. Appellant further asserts as a substantive matter that he is entitled to relief under Rule 60(b)(3), as appellees have breached thei

r agreement t

o consider him f

or parole on a ye

arly basis, an

d that sanctions should be

imposed against M

asters for engaging

in a series of misrepresenta

tions as to whether a

ppellant had a set disc

harge date and whe

ther he would be considered for parole on a yearly basis.2 Inactuality, the district court denied both of appel lant’s motions. However, this was

improper as a procedural matter; even if the court’s jurisdictional conclusion was correct, it would have lacked the power to deny the motions and instead would have been obligated to dismiss them pursuant to Fed . R. Civ. P. 12(h)(3). See Mirage Resorts, Inc. v. Quiet Nacelle Corp. , 206 F.3d 1398, 1401 (11 th Cir. 2000) (“[W]e conclude that the district court lacked subject matter jurisdiction to entertain Quiet Technology’s motion . . . . Theref

ore, on receipt o

f our mandate, the

court shall dismiss without prejudice the controversy the motion presents.”). Accordingly , we will construe the district court’s denials as dismissals pursuant to Fed. R. Civ. P. 12(h)(3). See also Fed. R. Civ. P. 12(b)(1). 3 We review the district court’s determination that it lacked subject m atter jurisdiction de novo . See Anderson v. United States , 317 F.3d 1235, 1237 ( 11 th Cir. 2003) (“We ‘[u]ndertak[e] a de novo review of the district court’s dismissal for lack of subjec

t matter jur

isdiction.’” (qu

oting Ambassador Factors v. Rhein-, Maas-, Und See-Schiffahrtskontor GMBH , 105 F.3d 1397, 1398 ( 11 th Cir. 1997))). Upon thorough review

of the record and c areful considerat ion of the parties’ briefs, we conclude that the district court erred in holding that it lacked subject matter juri sdiction over appella nt’s motions pur

suant to Fed. R. C

iv. P. 60(b) and 11. Accordingly

, we vacate its o

rder dismissing 2 these motions w

ith instructions to consid er their merit s. By contrast , the court correctly con cluded th at Mahone’s summary judgment m

otion was not justic

iable, and we af

firm its dism

issal of this motion. The relevant fac

ts and procedural his

tory are stra

ightforward. O

n April 19, 1999, Mahone filed an action pursuant to 42 U.S.C. § 1983 seeking damages4

against the Georgia

Board of Pardons a

nd Paroles (the “

Board”) and sever

al of its members. He alleged that the Board had violated the Ex Post Facto Clause of U. S. Const. art. I, § 10 by changing a r ule providing for y

early parole r

eviews and instead scheduling his p arole hearings at e ight year inter

vals. Appellant subsequently requ

ested that the distri

ct court enter a pr

eliminary injunction requiring appellee s to consider him for parole in Dec ember, 2001. The defendants moved to dis miss the sui t, noting that the Bo ard had agr eed to revi ew Mahone’s parol e appl icati ons an nual ly, and argui ng th at the disp ute th erefo re had become moot. They also asserted that the Board mem bers in their official capacities enjoyed Elev

enth Amendm

ent immunit

y against suits fo

r monetary

damages, and that they were

entitled to qualifie

d immunity

and quasi-judicial

immunity

in their personal capacitie s. The district c ourt agreed with a ll of appellees’ contentions, and dismissed the suit on August 24, 2001. On September 10, 2001 Mahone filed a notice of appeal from this order of dismissal, which we d esignated as 01-15 455. On February 1 1, 2002, during the pe ndency of that a

ppeal, appellant f

iled in the district court the aforementioned motions pursuant to Rules 11 and 60(b)(3). He argued specifically that appellees had misled the court by representing that Masters was the Director of the Board, when he actually was the Director of Legal Services for the Board, and that Masters would ensure that Mahone was5

considered for par

ole on a yearly

basis. Masters an

d the Board also alle

gedly deceived the court b

y implyi ng that appellant had a

preset discharge da

te, when in fact he was serving a life sentence with no such date. Based on these factual claims, Mahon

e argued that the dist

rict court’s ord

er dismissing his § 1983 action was predicated on f

raud, and that he co

nsequently was e

ntitled to relief the

refrom under Rule 60(b)(3). He also argued that as an officer of the court Masters was subject to Rule 11 sanctions for his misrepresentions. Based on the fact that Mahone’s appeal in 01-15455 remained pending in this court, the district court found that it lacked jurisdiction to consider his post-judgment motions and denied them. On March 21, 2002, appellant filed a notice of appeal from this order, which we designate

d 02-11657. On March 27, 2002,

Mahone filed in the di strict court a m otion for reconsideration of

the dismissal of

his two previous m

otions, and then on May

28, 2002 he moved for summary judgment. H

e argued in both of the se new motions that he had proven appellees’ fraud in his Rule 60(b)(3) motion. The district court found that it lacked su

bject matte

r jurisdiction over

these motions as well, and dismissed them

just as it had dism

issed appellant’s previous filings. A ppellant filed a notice of ap

peal from this o

rder, which we

designated 02-13797 and subsequently consolidated with 02-11657. Finally, on May 13, 2002 we affirmed3 I n Bonn er v. City of Prichard , 661 F.2d 1206, 1209 (11 th Cir. 1981) (en banc), this Court

adopted as binding precedent all decisions of the former Fifth Circuit hand

ed down prior to the

close of business on September 30, 1981. 6 the distr ict court’s dismissal o f Mahone’s c laims, thus t erminating M ahoney’s original appeal, 01 -15455. As a general matter, the filing of a notice of appeal deprives the district court of jurisdictio n over all issues in volved in the appe al. See Griggs v. Provident Consum

er Disc. Co. , 459 U.S. 56, 5 8, 103 S. Ct. 400, 402, 74 L. Ed. 2d 225 (1982); Doe v. Bush , 261 F.3d 1037, 1064 ( 11 th Cir. 2001) (“[A]s a general rule, the filing of a notice of appeal divests the district court of jurisdiction over those aspects of th e case that are the subject of the appeal.”), cert. denied Kearney v. Does , 534 U.S. 1104,

122 S. Ct. 903, 151 L . Ed. 2d 872 (2002).However, it does not prevent the dis

trict court from

taking action “i

n furtherance of t

he appeal.” Lairsey v. A

dvanced Abrasives Co. , 542 F.2d 928, 930 (5 th Cir. 1976) (citations omitted). 3 Nor does it prevent the court from

entertaining m

otions on matters collateral to tho se at issue on appeal

. Doe , 261 F.3d at 1064 (c iting Weaver v. Fla . Power & Light Co. , 172 F.3d 771, 773 (1 1 th Cir.1999)). Consistent with these

principles, we ha

ve held that district

courts retain jurisdiction afte

r the filing of a notice of appeal to enter tain and deny a R

ule 60(b) motion. As we explained in Parks v. U.S. Life & Credit Co rp. , “‘[t] his circuit,7

along with other cir

cuits and the com

mentators, ha

s expressly rec

ognized power in the district court to consider on the merits, and deny, a 60(b) motion filed after a notice of appeal, because the court’ s action is in further ance of the appeal. ’” 677 F.2d 838, 840 (11 th Cir. 1982) (quoting Lairsey , 542 F.2d at 930); see also Wilson v. Thompson , 638 F.2d 801, 803 (5 th Cir. 1981) (“ This circuit has de

cided that a district court retains jurisdiction to consider and deny a Rule 60(b) motion filed after the perfection of an appeal of the original decision.”). However, follow

ing the filing of a noti

ce of appeal distri

ct courts do not possess jurisdiction to grant a Rule 60(b) motion. Accordingly, a district court presented with a R

ule 60(b) motion a

fter a notice of a

ppeal has been filed

should consider the mot

ion and assess its m

erits. It ma

y then deny th

e motion or indica

te its belief that the a

rguments raise

d are meritor

ious. If the distric

t court selects the latter course, th

e movant ma

y then petition the

court of appeals to r

emand the

matter so as to confer jurisdict ion on the district cour

t to grant the mot

ion. The Sixth Circuit has des cribed this procedur e as follows: Where a party

seeks to make a

motion under Fed . R. Civ. P. 60( b) to vacate the judgment of a district court, after notice of appeal has been filed, the proper

procedure is for th

at party to file

the motion in the district court. If the district judge believes there shoul

d be relief from the judgment,

the district court is

to indicate that it w

ould grant the motion. The appellant should then make a motion in this court for a remand of the case so that the district court can grant relief.8

Bovee v. Coopers & Lybrand, C.P.A. , 272 F.3d 356, 359 n.1 (6 th Cir. 2001) (internal citations

omitted); see also Boyko v. Ander son , 185 F.3d 672, 675 (7 th Cir. 1999) (sam

e); Fobian v. Storage T

ech. Corp. , 164 F.3d 887, 890-91 (4 th Cir. 1999) (same) ; Hoai v. Vo , 935 F.2d 308, 312 (D.C. Cir. 1991) (same); Charles Alan Wright, A

rthur R. Miller &

Mary Kay

Kane, 11 Federa

l Practice and Procedure § 2873 (2d ed. 1997) (discussing the holding of several circuits that “during the pende

ncy of an appeal

the district court m

ay consider a R

ule 60(b) motion and if it in

dicates that it is inc

lined to grant it, ap

plication then can be made to the appe

llate court for a r

emand,” and concluding that “[ t]his procedure i s sound in theory and p referable in practice”). In this case, as ex

plained supra , the district cour t did not consider the m

erits of Mahone’s Rule 60(b) motions for relief from

judgment and f

or reconsideration

, but instead held that it lacked jurisdiction to do so. Based on the foregoing legal principles, this wa

s erroneous. Accordingly we re verse its dismis sal of these motions with instructions to undertake the inquiry explicated above. The district court als o enjoyed jurisdiction o ver appellant’s Rule 1 1 motion. As both the Supreme Court and we have recognized, Rule 11 motions raise issues that are collateral to the merits of an appeal, and as such may be filed even after9

the court no longe r has jurisdiction o ver the substance of the case. See Cooter & Gell v. Hartm

arx Corp. , 496 U.S. 384, 395-96, 11 0 S. Ct. 2447, 2455-56 , 110 L. Ed. 2d 359 (1990) (“It is well established that a federal court may c onsider collateral issues after an action is no longer pending. . . . [An] imposition of a Rule 11 sanction is not a judgment on the merits of an action. Rather, it requires the determina

tion of a collatera

l issue: whether the

attorney has ab

used the judicial process,

and, if so, what s anction would be appr opriate.”); Baker v. Alderman , 158 F.3d 516, 523 (1 1 th Cir. 1998) (“ Rule 11 motions ar

e collateral to an action and are not

barred if filed a

fter a dismissa

l order, or afte

r entry of judgment.”) ; Didie v. Howes , 988 F.2d 1097, 1103 ( 11 th Cir. 1993) (“ [T]he [Supreme] Court has . . . [ held] that a distr

ict court appropria

tely may impose Rule 11 sanctions in a case

in which the distric

t court subsequently

is determined t

o have been without subj ect matter j urisdiction.” (cit ing Willy v. Coa

stal Corp. , 503 U.S. 131, 112 S. Ct. 1076, 117 L. Ed. 2d 280 (1992))). Thus, the district court erred by dism

issing Mahone’s m

otion pursuant to Fed. R. Civ. P. 11 fo r lack of subject matte

r jurisdiction, a

nd on remand should

consider the me

rits of this motion as well. By contrast, t

he court was corr

ect in dismissing appellant’s m otion for summary judgm

ent. In this motion, Mahone simply adopted the arguments set10

forth in his Rule 60(b)

motion for reli

ef from judg

ment, assert

ing that there was n

o genuine factual dispu

te regarding the con

tentions set forth in t

he latter motio

n, and that as such he was entitled to summary judgm ent. In other words, he sought relief pursuant to Fed. R. Civ. P. 56 from the district court’s final judgme nt of dismissal of his underlying c

laims. This w

as improper be

cause, setting asid

e the fact that a notice of appeal had been filed, the district court already had entered final judgment on appe

llant’s underly

ing claims. A

ccordingly, tha

t judgment coul

d properly have be

en attacked in the dis

trict court only

by a motion pu

rsuant to Rule 60(b) or an indepen dent action. See Hendrick v. Aven t , 891 F.2d 583, 588 (5 th Cir. 1990) (“

The law and policy

surrounding a Rule 60(

b) motion is clea

r that this motion was inten

ded to be the only m

ethod of attacking a f

inal judgment a

nd not to be used in abundance .”); Landau & Cleary, Ltd. v. Hribar Trucking, Inc. , 867 F.2d 996, 1002 (7 th Cir. 1989) (noting th at Rule 60 “for

bids motions to obtai

n relief from a judgment other than those made under the Fe deral Rules” and that aside from Rul

e 59(e), which is

not presently app

licable, the only

Rule providing for relief from a final judgment is Rule 60(b)). A ccordingly, appellant’s summary judgment m

otion was an impr

oper effort to obta

in relief from

a final judgm

ent by means other than those provided by the Federal Rules of Civil Procedure.11

In short, we reve

rse the district cou

rt’s dismissa

l of appellant’s m

otions under Fed. R. Ci

v. P. 60(b) and Rul

e 11 and instruct the court to consider these motions as described, supra . We affirm the dismissal of

Mahone’s mot

ion for summary judgment. AFFIRMED IN PART, REVERSED IN PART AND REMANDED.