Richard L. Nevitt v. United States

We decide the jurisdictional question of whether the time limit for filing certain motions for relief from judgment is tolled during the pendency of an appeal.

I

Nevitt filed a Homestead Act claim with the Alaska office of the Bureau of Land Management (“BLM”) in 1973. 43 U.S.C. §§ 161 , 164 (repealed 1976). After years of administrative proceedings the BLM eventually denied Nevitt’s claim and the Interi- or Board of Land Appeals (“IBLA”) affirmed the decision of the BLM. Nevitt then sought judicial review of the IBLA order in the district court which granted BLM summary judgment on September 10, 1985.

On October 8, 1985, Nevitt filed a notice of appeal to this court which eventually affirmed the district court judgment on September 28, 1987. Nevitt v. United States, 828 F.2d 1405 (9th Cir.1987).

On February 14, 1986, during the pend-ency of the appeal, Nevitt filed in district court, purportedly pursuant to Rule 60(b)(2), a “Motion for Relief from Judgment and to Perpetuate Testimony Upon Newly Discovered and Supplemental Evidence and to Remand.” The district court refused to consider Nevitt’s motion while the appeal was pending. Nevitt thereafter filed an appeal of the…