                                   _____________

                                    No. 95-3737
                                   _____________

Frankie Schwartz,                        *
                                         *
        Plaintiff - Appellant,           *   Appeal from the United States
                                         *   District Court for the
        v.                               *   Eastern District of Missouri.
                                         *
Tom William Pridy, individually,         *
and as an employee of the                *
Missouri Department of Revenue;          *
Ronald Keck, individually,               *
and as an employee of the                *
Missouri State Highway Patrol,           *
                                         *
        Defendants - Appellees.          *


                                   _____________

                         Submitted:   April 12, 1996

                               Filed: August 26, 1996
                                  _____________

Before WOLLMAN, HANSEN, Circuit Judges, and KYLE,* District Judge.
                              _____________


HANSEN, Circuit Judge.

        Frankie Schwartz appeals the district court's1 grant of summary
judgment to defendants, Tom William Pridy and Ronald Keck, on the basis of
qualified immunity in this suit filed pursuant to 42 U.S.C. §§ 1983 and
1985.       Schwartz claims the defendants violated his civil rights when they
knowingly made false statements




        *
         The HONORABLE RICHARD H. KYLE, United States District
        Judge for the District of Minnesota, sitting by
        designation.
        1
      The Honorable George F. Gunn, Jr., United States District
Judge for the Eastern District of Missouri.
in   a       affidavit    supporting   an   application    for   a   search   warrant   for
Schwartz's business.           Pridy has filed a motion to dismiss this appeal on
jurisdictional grounds.            We deny the motion to dismiss and affirm the
district court's grant of summary judgment.


                                              I.


         Defendant Tom William Pridy is a special agent for the Criminal
Investigations Bureau of the Missouri Department of Revenue (DOR), whose
responsibilities include investigating violations of the Missouri motor
vehicle statutes.            Pridy was assigned to investigate whether Frankie
Schwartz owned and operated a used car and auto parts business without a
license.        See      Mo. Rev. Stat. § 301.218 (1994) (requiring licenses for
salvage businesses).          In the course of Pridy's investigation, he contacted
Defendant Ronald Keck, a Missouri State Highway Patrol Trooper, who, among
other things, checks the compliance of salvage yards and salvage yard
dealers with the Missouri statutes and regulations.


         In May 1991, Pridy met with a special prosecuting attorney who was
handling the criminal case against Schwartz arising out of his alleged
unlicensed operation of the automobile salvage yard.2                  Despite statutory
authority to search Schwartz's business premises without a warrant, see id.
§ 301.225 (authorizing warrantless inspections of salvage business records
and premises for the purpose of enforcing salvage business laws), the
special prosecutor filled out three documents:             an application for a search
warrant, an affidavit, and a search warrant.              All three completed documents
referred to information Officer Keck had received from an informant
regarding stolen cars and car parts allegedly kept at Schwartz's business
place.        The affidavit also contained information about Schwartz's operation
of his business without a license.             Pridy




         2
      The criminal prosecution was dropped in November 1991, when
Schwartz obtained a license for his salvage business.

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signed the affidavit and the application for a search warrant, noting on
both documents that he was a DOR special agent.      Keck did not sign the
documents.


     The documents were submitted to a state circuit judge, who issued a
search warrant.    Pursuant to the warrant, Pridy searched the business
records, and Keck and several other officers searched the premises.
Nothing was seized.


     The three documents that were presented to the state judge have at
some point in time been altered with an uninitialed line deleting the
references to stolen cars and car parts.      The parties dispute when the
documents were altered.   Pridy and Keck, as well as the special prosecutor,
claim that all the references to stolen items had been crossed out before
the documents were submitted to the judge.   Schwartz contends the documents
were altered after the defendants obtained the search warrant.


     Schwartz brought this suit pursuant to 42 U.S.C. §§ 1983 and 1985,
alleging, inter alia, that the defendants knowingly made false statements
in their affidavit and application for the search warrant, namely, that
Schwartz was storing stolen cars and car parts at his place of business and
that Pridy was a "peace officer" in the State of Missouri.   Keck then filed
a counterclaim against    Schwartz based on various state law theories.   On
January 18, 1995, after dismissing pursuant to Federal Rule of Civil
Procedure 12(b)(6) Schwartz's claims that failed to state a cause of
action,   the district court granted the defendants summary judgment on the
remaining § 1983 claim on the basis of qualified immunity.    Schwartz then
filed a motion styled as a "Motion for Reconsideration," citing Federal
Rule of Civil Procedure 54(b).    On October 13, 1995, the court dismissed
Keck's counterclaim and Schwartz's motion for reconsideration.     Schwartz
appeals the district court's grant of summary judgment.      Pridy moves to
dismiss the appeal for lack of jurisdiction.




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                                         II.


A.    Appellate Jurisdiction


       As a preliminary matter, we must first address the issue of our
jurisdiction over this appeal.        In his motion to dismiss the appeal, Pridy
argues that Schwartz failed to file a timely notice of appeal, as required
by Federal Rule of Appellate Procedure 4.


       The district court granted the defendants summary judgment with
regard to Schwartz's claim on January 18, 1995, but did not at that time
decide Keck's counterclaim.      On February 2, 1995, Schwartz filed a motion
for    reconsideration    of    the    summary     judgment.     The     motion   for
reconsideration and the counterclaim were still pending when Schwartz filed
his notice of appeal on February 21, 1995.         Seven months later, on October
13,   1995,   the   district   court   dismissed    the   counterclaim   and   denied
Schwartz's motion for reconsideration.             On October 18, 1995, Schwartz
attempted to file a second notice of appeal, mailing it to the district
court clerk of court and mailing copies of it to the defense attorneys.
The clerk's office returned the notice, however, stating that it had
already received Schwartz's earlier notice of appeal.


       Generally, a party in a civil case must file its notice of appeal
"within 30 days after the date of entry of the judgment or order appealed
from."   Fed. R. App. P. 4(a)(1).      "This 30-day time limit is `mandatory and
jurisdictional.'"     Browder v. Director, Dep't of Corrections of Ill., 434
U.S. 257, 264 (1978).     A party may toll the 30-day time period, however,
by filing a motion under either Rule 59(e) or Rule 60(b) of the Federal
Rules of Civil Procedure within 10 days after the district court has
entered a final judgment.      Fed. R. App. P. 4(a)(4)(C), (F); United States
v. Duke, 50 F.3d 571, 574 (8th Cir.), cert. denied, 116 S. Ct. 224 (1995).




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     In the instant case, Schwartz did not technically file a timely
notice of appeal, because he filed his notice when the district court had
not yet entered a final judgment on the counterclaim.         See Thomas v.
Basham, 931 F.2d 521, 523 (8th Cir. 1991) (holding that notice of appeal
filed before the district court had reached a decision on the counterclaims
was premature and insufficient).    Even if we construe Schwartz's "Motion
for Reconsideration" as a Rule 60(b) or Rule 59(e) motion, he falls short
of the timeliness requirement of Rule 4(a), for Schwartz's motion, like his
notice of appeal, was filed before the district court entered its final
judgment; the motion to reconsider could not toll under Rule 4(a)(4) a 30-
day time period that had not yet begun to run.    Moreover, there could be
no tolling effect because the district judge entered a final judgment on
the same day that he rendered a decision on Schwartz's motion.   Thus, under
a strict application of Rule 4's timeliness requirement, we would have no
jurisdiction over this appeal.


     Notwithstanding a party's failure to meet the requirements of Rule
4(a)(1), however, appellate jurisdiction may lie in certain situations
under the doctrine of "unique circumstances."    Thompson v. INS, 375 U.S.
384, 386-87 (1964).     Under this doctrine, appellate jurisdiction exists
when a party's failure to file a timely notice of appeal is the result of
good faith reliance on a mistaken statement or assurance of the district
court.   Id.   In Osterneck v. Ernst & Whinney, the Supreme Court explained
this narrow exception to the formalistic application of Rule 4(a)(1) as one
applying only when the party has relied on a judicial officer's "specific
assurance" that his notice of appeal has been timely filed.   489 U.S. 169,
179 (1989).     When a party has relied on the specific statement of the
district court that his notice of appeal




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is timely, however, fairness dictates that we deem the notice to be timely
filed.3   See id. at 178-79.


      We believe the doctrine of unique circumstances applies to this case.
On October 18, 1995, five days after the district court entered its final
judgment and its decision on Schwartz's motion to reconsider, Schwartz
properly attempted to file a timely notice of appeal.          The clerk's office
returned the notice, attaching a message that the clerk had already
received both the filing fee and the notice of appeal.         Schwartz relied in
good faith on the clerk of court's erroneous refusal to accept his timely
notice of appeal and on the clerk's erroneous representation that his
premature     notice   of   appeal   was       sufficient.   Under   these   unique
circumstances, we deem the notice to be sufficient to vest jurisdiction in
this court.    Cf. Neu Cheese Co. V. FDIC, 825 F.2d 1270, 1271-72 (8th Cir.
1987) (finding a notice of appeal to be timely when the clerk's office
lulled an appellant into the belief that the appeal was properly filed and
docketed).


B.   Substantive Arguments


      Having thus established our jurisdiction, we turn to the substantive
issue of whether summary judgment was appropriate in this case.                 The
district judge granted the defendants' motion for summary judgment on the
following bases: (1) the defendants had not




      3
      We note that because four justices rejected the unique
circumstances doctrine in a dissent, see Houston v. Lack, 487
U.S. 266, 282 (1988) (Scalia, J., dissenting), the continued
vitality of the doctrine has been questioned; however, because
the Supreme Court has not specifically overruled Thompson, and
instead chose in 1989 to distinguish that case in Osterneck, we
apply the doctrine as good law. Accord In re Mouradick, 13 F.3d
326, 329 n.5 (9th Cir. 1994); United States v. Heller, 957 F.2d
26, 28-29 (1st Cir. 1992); Pinion v. Dow Chemical, U.S.A., 928
F.2d 1522, 1530 (11th Cir.), cert. denied, 502 U.S. 968 (1991);
Varhol v. National R.R. Passenger Corp., 909 F.2d 1557, 1562 (7th
Cir. 1990); Kraus v. Consol. Rail Corp., 899 F.2d 1360, 1364 (3d
Cir. 1990).

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altered    the   documents   after   presenting   them   to   the   judge,   (2)   the
defendants' search was objectively reasonable in light of the clearly
established law, given the Missouri law allowing warrantless searches, (3)
Schwartz had failed to allege that the warrant lacked probable cause if
viewed without information on the stolen cars and parts, and (4) an
application for a search warrant by an unauthorized person does not per se
render the search warrant invalid.       The court concluded that Schwartz had
not alleged a violation of a clearly established constitutional right and
that summary judgment on the basis of qualified immunity was therefore
warranted.


      We review the district court's grant of summary judgment de novo,
applying the same standards as did the district court.              Thomason v. Scan
Volunteer Serv., Inc., 85 F.3d 1365, 1370 (8th Cir. 1996).            Pridy and Keck
are   entitled   to   qualified   immunity   unless   they    violated    Schwartz's
"`clearly established' constitutional rights."           Prosser v. Ross, 70 F.3d
1005, 1007 (8th Cir. 1995) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)).   A constitutional right is clearly established if "`a reasonable
official would understand that what he is doing violates that right.'"             Id.
(quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987)).


      Schwartz argues that the defendants violated his clearly established
civil rights by "the presentation to the state judge, for purposes of
obtaining a search warrant, of false allegations of criminal conduct by
plaintiff, knowing them to be false," thereby causing injury to Schwartz.
(Appellant's Br. at 9.)      Schwartz specifically alleges that Pridy knowingly
lied in the application, affidavit, and search warrant regarding the stolen
cars and parts allegedly kept at Schwartz's place of business.            He further
avers that the defendants presented the documents in their original form
to the trial judge in order to obtain a search warrant and later altered
the documents to cover their tracks.         Schwartz asserts that




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Pridy was not authorized under Missouri law to apply for a search warrant,
because he is not a "peace officer."           See Mo. Rev. Stat. § 542.276.1
(stating that peace officers and prosecuting attorneys may apply for search
warrants); id. § 590.100(4) (defining "peace officer").                   Finally, he
alleges that the defendants knowingly engaged in these misrepresentations
to   "punish   and   humiliate   [Schwartz]   and    to   damage    his   reputation."
(Appellant's Br. at 11.)


        Schwartz's argument fails for several reasons.          First, assuming, as
we must, that the defendants knowingly misrepresented to the state judge
the facts concerning stolen cars and auto parts, the misrepresentation did
not result in a search in violation of the Fourth Amendment, because the
search was valid even without a warrant.            Mo. Rev. Stat. § 301.225; New
York v. Burger, 482 U.S. 691, 702 (1987) (upholding a statute that
authorizes warrantless searches for salvage yards).                Second, no Fourth
Amendment violation occurred here because the unchallenged portions of the
warrant application and the affidavit, which allege that Schwartz was
operating an unlicensed salvage business, established probable cause for
a search.    See United States v. Johnson, 64 F.3d 1120, 1127 (8th Cir. 1995)
(holding no Fourth Amendment violation exists when "unchallenged portions
of an affidavit establish probable cause"), cert. denied, 116 S. Ct. 971
(1996).     Finally, Schwartz's contention that Pridy and Keck knowingly
misrepresented their authority to obtain the warrant is unavailing,
because, as explained above, the warrant was unnecessary.                 Furthermore,
Keck did not sign the documents and Pridy obtained the warrant in good
faith, explicitly stating his official position on both the affidavit and
the application.     See United States v. Freeman, 897 F.2d 346, 350 (8th Cir.
1990)    (stating    that   no   constitutional     violation      occurred   when   an
unauthorized officer who was acting in good faith obtained a search warrant
that was otherwise valid).


        In sum, this record, viewed in the light most favorable to Schwartz,
does not support his claim that the defendants violated




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a clearly established Fourth Amendment right against unreasonable searches.
To the extent that Schwartz contends the alleged misrepresentations damaged
his reputation, we note that defamation is not a cognizable constitutional
tort.    Siegert v. Gilley, 500 U.S. 226, 233 (1991).


        Accordingly, we deny the motion to dismiss and affirm the judgment
of the district court.


        A true copy.


             Attest:


                   CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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