Anthony Spencer v. United States , 594 F. App'x 242 ( 2015 )

Case: 13-40945 Document: 00512942293 Page: 1 Date Filed: 02/20/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-40945 United States Court of Appeals
Summary Calendar Fifth Circuit
FILED
February 20, 2015
ANTHONY W. SPENCER, Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
THE UNITED STATES
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:13-CV-79
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Anthony W. Spencer (“Spencer”) appeals the district
court’s dismissal of his complaint under Fed. R. Civ. P. 12(b)(6), its denial of
his motion for a new trial under Rule 59(a)(1)(B), and its denial of his motion
for relief from an order under Rules 60(a) and 60(b)(2). Because we lack
subject-matter jurisdiction to consider Spencer’s appeal, it is DISMISSED.
In a civil action in which the United States is a party, the appellant must
file a notice of appeal within sixty days after the district court enters its
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 13-40945 Document: 00512942293 Page: 2 Date Filed: 02/20/2015
No. 13-40945
judgment, order or decree. See 28 U.S.C. § 2107(b); Fed. R. App. P. 4(a)(1)(B).
If the appellant fails to file a notice of appeal in this time, this court lacks
subject-matter jurisdiction over the case. See Bowles v. Russell, 551 U.S. 205,
212-13 (2007) (holding that appellants’ failure to file notice of appeal within
time allowed by § 2107(c) deprived appellate court of jurisdiction, and
explaining that failure to timely file implicates subject-matter jurisdiction); see
also Kinsley v. Lakeview Reg’l Med. Ctr. LLC, 570 F.3d 586, 588 (5th Cir. 2009)
(dismissing case for failure to timely file under § 2107(a)); United States v.
Hernandez, 441 F. App’x 275, 275-76 (5th Cir. 2011) (per curiam) (same under
§ 2107(b)). 1
Spencer’s motions under Fed. R. Civ. P. 59 and 60 did not toll the running
of the sixty-day deadline to appeal. For such motions to have that effect, they
must be filed no later than twenty-eight days after entry of judgment. Fed. R.
Civ. P. 59(b), (e) (providing that Rule 59 motions “must be filed no later than
28 days after the entry of the judgment”); Fed. R. App. P. 4(a)(4)(A)(iv)-(vi)
(providing that a Rule 59 motion tolls clock only if it is “timely,” and that Rule
60 motion does so “if the motion is filed no later than 28 days after the
judgment is entered”). To satisfy this twenty-eight day requirement, Spencer’s
Rule 59 and 60 motions were due no later than July 22, 2013. Spencer filed his
motions on July 25, 2013.
The district court entered judgment on June 24, 2013. Spencer’s notice
of appeal was due no later than August 23, 2013. Spencer filed his notice of
appeal on September 3, 2013. Because Spencer filed his notice of appeal after
the deadline, this court lacks subject-matter jurisdiction to consider his appeal.
For the reasons explained, the appeal is DISMISSED.
1Spencer argues that we should extend this deadline under Fed. R. Civ. P. 6(b)(1)(B).
But Rule 6(b)(2) expressly prohibits extensions of time for post-judgment motions like the
ones Spencer filed below.
2