828 F. 2d 20 - Tolbert v. T Overberg

Before BOYCE F. MARTIN, Jr. and BOGGS, Circuit Judges, and WISEMAN, Chief United States District Judge.*

This matter is before the court upon consideration of the appellant's response to this court's order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction. Appellant has responded stating that he filed a notice of appeal in the district court on June 1, 1987, within the appeals period. A copy of a filed stamped notice of appeal was attached to the response.

A review of the file indicates that the judgment of the district court was entered on May 6, 1987. On June 8, 1987, the district court filed a document entitled 'Certificate Stating that Plaintiff will provide Record on Appeal' which it treated as a notice of appeal and transmitted to this court pursuant to Rule 3(d), Federal Rules of Appellate Procedure. The notice of appeal was docketed as appeal number 87-3584. The district court docket sheet does not reflect the June 1, 1987, notice of appeal.

It is ORDERED that the case be remanded to the district court for it to check its records to ascertain whether the June 1, 1987, notice of appeal was filed in the district court and for correction of its records, if appropriate, pursuant to Rule 10(e), Federal Rules of Appellate Procedure, to include the June 1, notice of appeal. The clerk of this court is directed to transmit a copy of the June 1, 1987, notice of appeal to the district court. After resolution of the matter, the district court record should be transmitted to this court for filing.