The opinion of the court was delivered by: POLLAK
LOUIS H. POLLAK, District Judge.
This action involved a challenge by several inmates to the conditions of confinement at Holmesburg Prison. I dismissed all claims except those arising out of an alleged denial by defendants of plaintiffs' access to the law library. After a bench trial on those claims, I found in favor of plaintiff Richard Harris and I found against plaintiffs Anthony Reid and Jesus Marrero. Because of circumstances described more fully in my Memorandum/Order dated January 25, 1984, I granted plaintiff Jerome Silo one year from the time of trial, May 1982, to show cause why I should not dismiss his claims. By the Memorandum/Order of January 25, 1984, I did dismiss Mr. Silo's claims.
Currently before the court are several submissions by both Mr. Silo and Mr. Silo's appointed counsel, Professor Peter Goldberger of Villanova Law School. The docket also discloses, however, that on March 15, 1984, Professor Goldberger filed a Notice of Appeal on behalf of Mr. Silo. Therefore, before considering the various submissions by Mr. Silo and Professor Goldberger, I must determine whether this court has any jurisdiction to decide any of the pending motions. In addition, I must determine whether I will consider any of Mr. Silo's pro se submissions when, at all pertinent times, Mr. Silo has been represented by Professor Goldberger. Professor Goldberger has skillfully and diligently represented all plaintiffs in this action since he accepted this court's appointment at an early stage in these proceedings.
On January 27, 1984, the Clerk entered my Memorandum/Order of January 25 dismissing Mr. Silo's claims. On February 10, Mr. Silo filed a "Motion to Stay Execution of Memorandum/Order Entered January 27, 1984." Mr. Silo denominates this motion as one pursuant to Fed.R.Civ.P. 60(b). The motion challenges the validity of the January 25 Memorandum/Order on legal and factual grounds. Therefore the motion seems properly characterizable as a motion for reconsideration of the January 25 Memorandum/Order.
"Motions for reconsideration or reargument shall be served within ten (10) days after the entry of the judgment, order, or decree concerned." E.D.Pa.R.Civ.P. 20(g). Mr. Silo mailed his motion for reconsideration to the court and to opposing counsel. "Service by mail is complete upon mailing." Fed.R.Civ.P. 5(b). Mr. Silo certified that he mailed the motion on February 6, 1984, within the ten day period from January 27 prescribed by Local Rule 20(g). Therefore, if I am entitled to consider Mr. Silo's pro se submission at all, I will consider it as a timely filed motion for reconsideration.
Mr. Silo responded to the entry of the civil judgment with a pro se submission essentially incorporating his earlier petition for reconsideration. Mr. Silo certified that he mailed this submission on February 23, 1984. The Clerk filed this submission on February 27. Mr. Silo styled his February 27 submission as a motion under Rule 60(b). However, because he served this document on February 23, within ten days of the entry of the civil judgment, one could characterize this submission as a motion to alter or amend the judgment pursuant to Rule 59(e).
On March 15, 1984, Professor Goldberger filed a notice of appeal of the judgment entered against Mr. Silo. At the same time, he also filed a motion to withdraw as Mr. Silo's counsel.
By letter dated March 22, 1984, Mr. Silo responded to Professor Goldberger's motion to withdraw. Mr. Silo stated his opposition to that motion based upon a variety of theories including the application of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), to relief of appointed counsel in this civil case. However, Mr. Silo requested further time to submit a more detailed response by affidavit.
On April 12, 1984, Mr. Silo submitted an affidavit which purported to support both Mr. Silo's opposition to Professor Goldberger's motion to withdraw and Mr. Silo's February 27 submission. In fact, the affidavit supports only the February 27 submission.
The jurisdictional difficulty in this case arises out of Professor Goldberger's filing of a facially valid notice of appeal on March 15, 1984. "The filing of a notice of appeal is an event of jurisdictional significance -- it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S. Ct. 400, 402, 74 L. Ed. 2d 225 (1982). Arguably, the notice of appeal divested this court of jurisdiction over any of the pending motions.
(A) Jurisdiction to Characterize Mr. Silo's Submission and the Validity of the Pending Appeal
The March 15, 1984, notice of appeal filed by Professor Goldberger on Mr. Silo's behalf is facially valid. If the filing of a notice of appeal "is an event of jurisdictional significance . . . confer[ing] jurisdiction on the court of appeals and divest[ing] the district court of its control over those aspects of the case involved in the appeal[,]" Griggs, 103 S. Ct. at 402, then a facially valid notice of appeal arguably divests this court of jurisdiction to determine the character of a post-judgment motion and the consequent validity of the appeal. Arguably, I must await the Court of Appeals' decision whether Mr. Silo's "Motion to Stay Execution of Civil Judgment" constitutes a motion pursuant to Fed.R.Civ.P. 59(e) which nullifies the pending appeal.
Courts ordinarily have jurisdiction to determine their own jurisdiction. The only possible problem in this case is that in determining this court's jurisdiction, I must also necessarily determining the Court of Appeals' jurisdiction. I have found no reported decisions addressing this particular problem.
In my view, a district court faced with a post-judgment motion and a subsequent notice of appeal has jurisdiction to determine whether the district court may properly address the post-judgment motion. The district court need not await the court of appeals' dismissal of the appeal.
This view draws support from the procedure for considering motions pursuant to Fed.R.Civ.P. 60(b) announced by the Court of Appeals for the District of Columbia Circuit in Smith v. Pollin, 90 U.S. App. D.C. 178, 194 F.2d 349, 350 (D.C.Cir.1952), and more recently characterized as among the more rigid procedures by our Court of Appeals in ...