                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-7224


STUART WAYNE TOMPKINS,

                Plaintiff - Appellant,

          v.

DAVID MITCHELL, Superintendent,

                Defendant - Appellee.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.   Graham C. Mullen,
Senior District Judge. (1:08-cv-00322-GCM)


Submitted:   February 17, 2010             Decided:   March 4, 2010


Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.


Remanded by unpublished per curiam opinion.


Stuart Wayne Tompkins, Appellant Pro Se.       Yvonne Bulluck Ricci,
Assistant  Attorney   General,  Raleigh,      North   Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Stuart    Wayne    Tompkins       seeks    to       appeal    the   district

court’s    order    denying    relief    in    his    42    U.S.C.       § 1983   (2006)

action.    The district court entered its order on April 14, 2009.

Tompkins filed his notice of appeal on June 23, 2009.                            Attached

to his notice of appeal, Tompkins provided a sworn statement

that he did not receive notice of the district court’s order

until June 21, 2009.

            Parties are accorded thirty days after the entry of

the district court’s final judgment or order to note an appeal,

Fed. R. App. P. 4(a)(1)(A), unless the district court extends

the appeal period under Fed. R. App. P. 4(a)(5), or reopens the

appeal period under Fed. R. App. P. 4(a)(6).                      This appeal period

is “mandatory and jurisdictional.”                Browder v. Dir., Dep’t of

Corr., 434 U.S. 257, 264 (1978) (internal quotation marks and

citation    omitted);    see    Bowles    v.    Russell,         551     U.S.   205,   214

(2007).

            Tompkins’     notice    of        appeal       is     clearly       untimely.

However, we construe Tompkins’ notice of appeal as a motion to

reopen the time to appeal.              See United States v. Feuver, 236

F.3d 725, 729 n.7 (D.C. Cir. 2001).                  Accordingly, we remand the

case to the district court for the limited purpose of permitting

that   court   to     determine    whether       Tompkins          can     satisfy     the

requirements for reopening the appeal period set forth in Rule

                                         2
4(a)(6).   See Ogden v. San Juan County, 32 F.3d 452, 454 (10th

Cir. 1994).   The record, as supplemented, will then be returned

to this court for further consideration.

                                                        REMANDED




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