                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           AUG 25 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


KONIAG, INC., an Alaska corporation;             No. 13-35759
MICHAEL P. O’CONNELL,
                                                 D.C. No. 3:12-cv-00077-SLG
              Plaintiffs - Appellees,

  v.                                             MEMORANDUM*

KURT KANAM, individually and as
Tribal Attorney for the Native Village of
Karluk; ORBIE MULLINS, individually
and as Village of Karluk Tribal Court
Judge for the Karluk Tribal Court for the
Native Village of Karluk,

              Defendants - Appellants.


                    Appeal from the United States District Court
                             for the District of Alaska
                    Sharon L. Gleason, District Judge, Presiding

                           Submitted August 11, 2015**
                               Anchorage, Alaska

Before: SCHROEDER, RAWLINSON, and MURGUIA, Circuit Judges.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Native Village of Karluk tribal attorney Kurt Kanam and Karluk Tribal

Court Judge Orbie Mullins (collectively, Defendants) appeal the district court’s

order entered on July 29, 2013, granting partial summary judgment and a

permanent injunction in favor of Koniag, Inc. and Koniag’s attorney Michael P.

O’Connell. Because Defendants’ notice of appeal is untimely, we dismiss.

      Defendants’ notice of appeal dated August 19, 2013, does not challenge a

final decision or interlocutory order. See 28 U.S.C. §§ 1291 (appeal of final

decision), 1292 (appeal of certain interlocutory orders).

      Defendants’ amended notice of appeal dated September 26, 2013, challenges

an interlocutory order—the district court’s grant of a permanent injunction—but it

was filed more than thirty days after entry of the order appealed. See 28 U.S.C. §

2107(a); Fed. R. App. P. (FRAP) 4(a)(1)(A). The Appellate Commissioner

concluded that the “amended notice of appeal appears to be timely filed because

[Defendants’] . . . cross-complaint names a federal party to the underlying action.”

The Appellate Commissioner correctly cited 28 U.S.C. § 2107(b) and FRAP

4(a)(1)(B)(iv), which extends the deadline to file a notice of appeal to sixty days if

one of the parties is the United States, or “a current or former United States officer

or employee sued in an individual capacity . . .” However, the sixty-day filing

period does not apply in this case.


                                           2
      Although Defendants filed a Cross Complaint that named federal officers or

employees, the district court did not act on the Cross Complaint because

Defendants failed to move for leave to amend to add those parties. In addition,

these federal officers or employees did not become parties because it appears that

they were not served, nor did the federal officers or employees “participate[]” in

the action or share an interest in the outcome of the appeal. In re Paris Air Crash

of March 3, 1974, 578 F.2d 264, 265 (9th Cir. 1978) (per curiam) (citations

omitted). Finally, the served Defendants were not federal employees. See Wallace

v. Chappell, 637 F.2d 1345, 1348 (9th Cir. 1981) (en banc) (per curiam)

(explaining that the 60-day filing period applies only if the defendants act under

government authority). Therefore, the amended notice of appeal was untimely.

      Because we lack “jurisdiction to entertain an untimely notice of appeal,” we

must dismiss. Washington v. Ryan, 789 F.3d 1041, 1048 (9th Cir. 2015).

      DISMISSED.




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