In the United States Court of Appeals For the Seventh Circuit ____________

No. 01-3532 CHESTER FLORIAN and KENNETH ROLFE, Plaintiffs-Appellants, v.

SEQUA CORPORATION, JIM BOYLE, and UNITED STEELWORKERS OF AMERICA, LOCAL 3911, Defendants-Appellees. ____________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 C 7459—Joan B. Gottschall, Judge. ____________ ARGUED MAY 22, 2002—DECIDED MAY 22, 2002*— OPINION JUNE 21, 2002 ____________

Before POSNER, KANNE, and WILLIAMS, Circuit Judges. PER CURIAM. This is a procedurally botched appeal; we are publishing our decision in an effort to head off a repeti- tion of the problem that gave rise to the botch. The underly- ing suit is by two employees of the defendant corporation and charges the corporation and the union that represents

* By oral direction from the bench. 2 No. 01-3532

the employees with violation of the collective bargaining agreement and of the union’s duty of fair representation, respectively, and also and critically with violations of state law. The district court entered judgment in favor of the de- fendants. Within 10 days, the plaintiffs filed a motion to re- consider so much of the judgment as dismissed the state law claims. That was a motion governed by Fed. R. Civ. P. 59(e) and thus technically a motion to alter or amend the judg- ment; its mislabeling as a motion for reconsideration was without significance. Although the motion was filed in September of last year, the district court has yet to rule on it. In their docketing statement filed in this court in October shortly after the filing of the notice of appeal in the district court, the plaintiffs asserted that this court had jurisdiction of the appeal. They noted the pending motion to reconsider and added that they were “not appealing” the decision dis- missing their state law claims and “are appealing an issue not involved in” the motion to reconsider. This should have raised a warning flag to the members of this court’s staff who screen appeals for jurisdiction, but it did not, and the case proceeded to briefing. The appellants filed their brief in January. The jurisdictional statement in their brief sim- ply repeats the relevant portion of the docketing state- ment. The appellees woke up at last and the following month moved this court to stay the appeal pending the dis- trict court’s disposition of the motion to reconsider. They pointed out that a notice of appeal filed before the district court rules on a Rule 59(e) motion does not take effect until the motion is disposed of. Fed. R. App. P. 4(a)(4)(A)(iv), (B)(i). Until then the appeal is suspended—dormant—un- ripe. Otis v. City of Chicago, 29 F.3d 1159, 1166 (7th Cir. 1994) (en banc); United Computer Systems, Inc. v. AT & T Corp., No. 00-55768, 2002 WL 1088549, at *3 (9th Cir. May 21, 2002); Miles v. General Motors Corp., 262 F.3d 720, 722-23 (8th Cir. 2001); Ibrahim v. District of Columbia, 208 F.3d 1032, 1034 No. 01-3532 3

(D.C. Cir. 2000); Committee Note to 1993 Amendment of Rule 4. Yet on February 20, a motions panel of this court, without explanation, denied the motion for a stay. This was a mistake. As there was no suggestion of an emergency, further briefing should have been held in abeyance until and unless the motion to reconsider was ruled on by the dis- trict court. See Hodge v. Hodge, 269 F.3d 155, 157 n. 4 (2d Cir. 2001) (per curiam). The appellees duly filed their briefs, stating that there was no appellate jurisdiction as yet. The appellants filed no re- ply brief. Oral argument was scheduled. When the briefs were distributed to this panel (the merits panel), the presid- ing judge, noticing the denial of jurisdiction in the appel- lees’ brief, asked a member of the court’s staff to tell the appellants’ lawyer to submit a letter to the court respond- ing to the appellees’ jurisdictional statement. The lawyer, it turned out, was on vacation in Florida and informed us that, being a sole practitioner, he could not respond until he re- turned to Chicago the evening of the second day before the scheduled argument. He submitted a brief response the following day, that is, the day before the argument, in which he stated that he had informed the appellees’ counsel, after reading the motion to stay the appeal many months earlier, that “I do not quarrel with the rather plain language of Rule 4(a)(4)(A). I told him then, and still feel now that if this Honorable Court granted the [appellees’ motion to stay the appeal] and ruled that it did not have jurisdiction until [the district judge] ruled on Plaintiffs’ motion for reconsideration then so be it.” At argument the next day, when asked whether we had jurisdiction to decide the appeal, he readily conceded that we did not, as did the lawyers for the appellees; but one of the latter suggested that since the case had been argued and the lawyers for both sides were present for the argument, 4 No. 01-3532

we should hear argument on the merits and, as soon as we acquired jurisdiction, decide the merits. That was not a good suggestion. The district court’s ruling might moot the ap- peal, or create additional appealable issues; in the first case the argument would have been a waste of time, and in the second we would be considering the appeal piecemeal. We acknowledge our own error in failing to stay the ap- peal; but the appellants’ lawyer is equally culpable. His as- sertion in the docketing statement, repeated in his appeal brief, that there was jurisdiction to decide the appeal was false (we can’t decide an appeal before the notice of appeal becomes effective), and obviously so, since there is noth- ing subtle or esoteric about the provisions of Rule 4(a)(4), which suspend the notice of appeal—if one of the motions specified in the rule, including a motion under Fed. R. Civ. P. 59(3), remains unresolved in the district court—until it is resolved. When the appellees pointed this out in their mo- tion for a stay of the appeal and later in their appeal brief, the appellants’ lawyer should have responded and indicated to us that they were correct, so that the case would have been removed from the argument calendar. In these circum- stances we have thought it appropriate to dismiss the ap- peal as a sanction. Should a new appeal be filed upon the district judge’s ruling on the motion to reconsider, it will return to this panel.

A true Copy: Teste:

_____________________________ Clerk of the United States Court of Appeals for the Seventh Circuit

USCA-97-C-006—6-21-02