Burnley v. City of San Antonio ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED NOVEMBER 9, 2006
September 15, 2006
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
______________________
No. 04-51181
______________________
DOROTHY BURNLEY
Plaintiff-Appellee
versus
CITY OF SAN ANTONIO
Defendant-Appellant
___________________________________________________
Appeal from the United States District Court for
the Western District of Texas
___________________________________________________
Before DAVIS, SMITH, and DENNIS, Circuit Judges.*
DENNIS, Circuit Judge:
Dorothy Burnley brought suit in Texas state court
*
This revised opinion supersedes, without
substantive change, the original version issued on
September 15, 2006, in the following limited respect:
New footnote one is added to call attention to the
Supreme Court’s recent decisions explaining the proper
usage of the term “jurisdictional” in certain contexts.
Accordingly, the other footnotes have been renumbered
but not otherwise altered. These revisions do not
change the substance, analysis or effect of our
decision, and we have not reopened the case.
1
against her employer, the City of San Antonio (“the
City”), asserting claims under the Americans with
Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213, the
Texas Commission on Human Rights Act, TEX. LAB. CODE §
21.051, and Texas negligence law. She alleged that the
City failed to reasonably accommodate her disability and
that the City’s negligence caused her mold-induced
respiratory illness. The City removed the case to federal
court, and, after a trial, a jury returned a general
verdict accompanied by interrogatories in Burnley’s
favor, awarding her $165,000 in compensatory damages. The
clerk prepared a judgment incorporating the substance of
the jury verdict and entered it in the civil docket on
February 2, 2004. The court did not approve the form of
the judgment before it was entered by the clerk. Burnley
filed a motion for attorney’s fees on February 10, 2004.
Several months later, on September 16, 2004, the
district court granted Burnley’s motion for attorney’s
fees, awarding her $31,530. On October 18, 2004, the City
moved the district court to: (1) order under FED. R. CIV.
P. (“FRCP”) 58(c)(2) that Burnley’s motion for attorney’s
2
fees have the same effect under FED. R. APP. P. (“FRAP”)
4(a)(4) as a timely motion under FRCP 59; and (2) approve
the form of a separate document judgment, entered by the
clerk, incorporating the jury verdict. The court granted
both motions on October 18, 2004. Also on October 18,
2004, the clerk entered the judgment approved as to form
by the court, and the City filed a notice of appeal.
Thus, the time line unfolded as follows:
(1) February 2: Jury verdict; clerk’s entry of
judgment; no court approval.
(2) February 10: Plaintiff moved for attorney’s
fees under FRCP 54(d)(2).
(3) July 2: 150 days elapsed after clerk’s entry
of judgment on the verdict.
(4) September 16: Plaintiff’s fee motion
granted.
(5) October 18: Defendant filed, and court
granted, FRCP 58 (c)(2) motion to treat fee
motion as FRCP 59 new trial motion to delay
running of time to appeal.
(6) October 18: Court approved the form of the
judgment on the merits entered by the clerk
on February 2, 2004.
(7) October 18: Defendant filed notice of
appeal.
3
I.
Burnley objects to our exercise of appellate
jurisdiction, contending that the City did not file a
timely notice of appeal. FRAP 4(a)(1)(A) provides: “In a
civil case except as provided in Rules 4(a)(1)(B),
4(a)(4), and 4(c), the notice of appeal required by Rule
3 must be filed with the district clerk within 30 days
after the judgment or order appealed from is entered.”
The taking of an appeal within the prescribed time is
“mandatory and jurisdictional.”1 Budinich v. Becton
1
The Supreme Court recently clarified that it has
been “less than meticulous” in its use of the word
“jurisdictional” to characterize the requirement of
taking an appeal within the prescribed time. Eberhart
v. United States, –- U.S. ----, 126 S. Ct. 403, 405
(2005)(discussing FED. R. CRIM. P. 33 and 35)(quoting
Kontrick v. Ryan, 540 U.S. 443, 454 (2004)). Such rules
are more properly called “claim processing” rules,
while the label “jurisdictional” should be reserved
“only for prescriptions delineating the classes of
cases (subject-matter jurisdiction) and the persons
(personal jurisdiction) falling within a court’s
adjudicatory authority.” Eberhart, 126 U.S. at 405
(quoting Kontrick, 540 U.S. at 455). Nevertheless, when
an appellee properly objects to an untimely filed
appeal (as did Ms. Burnley), the court’s duty to
dismiss the appeal is just as mandatory as if the rule
were jurisdictional. See Eberhart, 126 U.S. at 406-7
(when a party objects to a filing as untimely under the
rules of procedure, “the court’s duty to dismiss the
appeal [is] mandatory”) (discussing United States v.
4
Dickinson & Co., 486 U.S. 196, 203 (1988)(citing FRAP 2,
3(a), 4(a)(1), 26(b); United States v. Robinson, 361 U.S.
220 (1960); Farley Transp. Co. V. Santa Fe Trail Transp.
Co., 778 F.2d 1365 (9th Cir. 1985)); see Moody Nat. Bank
of Galveston v. GE Life and Annuity Assur. Co., 383 F.3d
249, 250 (5th Cir. 2004) (“A timely filed notice of
appeal is an absolute prerequisite to this court's
jurisdiction.”); Halicki v. Louisiana Casino Cruises,
Inc., 151 F.3d 465, n.1 (5th Cir. 1998);). The Advisory
Committee’s Note under FRAP 3 states:
Rule 3 and Rule 4 combine to require that a
notice of appeal be filed with the clerk of the
district court within the time prescribed for
taking an appeal. Because the timely filing of a
notice of appeal is ‘mandatory and
jurisdictional,’ compliance with the provisions
of those rules is of the utmost importance.
FRAP 3 advisory committee’s note (quoting Robinson, 361
U.S. 220, 224 (1960)). Although FRAP 2 provides that a
court of appeals may, “to expedite its decision or for
other good cause[,] suspend any provision of these rules
in a particular case,” FRAP 26(b) forbids a court to
“extend the time to file . . . a notice of appeal (except
Robinson, 361 U.S. 220, 229-30 (1960)).
5
as authorized in rule 4).” Therefore, under the rules, we
may not hear a case unless we can say that the notice of
appeal has been filed within the time constraints laid
upon us by FRAP 4. The Advisory Committee’s view that the
time for filing a notice of appeal requirement of FRAP 4
is jurisdictional, “although not determinative, is ‘of
weight’ in our construction of the Rule.” Torres v.
Oakland Scavenger Co. 487 U.S. 312, 316 (1988) (quoting
Miss. Publ’g Corp. v. Murphree, 326 U.S. 438, (1946)).
In the present case, because the City filed its
notice of appeal on October 18, 2004, over seven months
after the clerk entered the judgment in the civil docket
on February 2, 2004, it appears that the City’s appeal
was late. The City argues, however, that: (1) the clerk’s
entry was a nullity and therefore did not cause the time
for appeal to commence; or, in the alternative, (2) under
the district court’s order of October 18, 2004, the
plaintiff’s post-judgment motion for attorney’s fees must
be treated as having the same effect as a motion for a
new trial, i.e., as delaying the effectiveness of the
entry of judgment until the court disposed of the motion
6
on September 16, 2004, resulting in the October 18, 2004
notice of appeal being timely because it was within 30
days of the entry of judgment.
II.
The City first argues that the notice of appeal clock
never began to run because the clerk’s entry of judgment
on February 2, 2004 was invalid due to the court’s
failure to approve of that judgment as to form, as
required by FRCP 58(a)(2)(B)(i). To address this
argument, we turn to FRCP 58 and FRAP 4, which contain
definitions of “entry” and “time of entry” of judgments.2
2
FRCP 58 provides, in pertinent part:
(a) Separate Document.
(1) Every judgment and amended judgment must be
set forth on a separate document, but a
separate document is not required for an order
disposing of [certain motions under Rules
50(b), 52(b), 54, 59, and 60].
(2) Subject to Rule 54(b):
(A) unless the court orders otherwise,
the clerk must, without awaiting the
court's direction, promptly prepare,
sign, and enter the judgment when:
(i) the jury returns a general
7
verdict,
(ii) the court awards only
costs or a sum certain, or
(iii) the court denies all
relief;
(B) the court must promptly approve
the form of the judgment, which the
clerk must promptly enter, when:
(i) the jury returns a special
verdict or a general verdict
accompanied by
interrogatories, or
(ii) the court grants other
relief not described in Rule
58(a)(2).
(b) Time of Entry. Judgment is entered for
purposes of these rules:
(1) if Rule 58(a)(1) does not require a
separate document, when it is entered in the
civil docket under Rule 79(a), and
(2) if Rule 58(a)(1) requires a separate
document, when it is entered in the civil
docket under Rule 79(a) and when the earlier of
these events occurs:
(A) when it is set forth on a separate
document, or
(B) when 150 days have run from entry
in the civil docket under Rule 79(a).
Similarly, FRAP 4, provides, in relevant part:
8
(a) Appeal in a Civil Case.
. . . .
(7) Entry Defined.
(A) A judgment or order is entered for
purposes of this Rule 4(a):
(i) if Federal Rule of Civil
Procedure 58(a)(1) does not
require a separate document,
when the judgment or order is
entered in the civil docket
under Federal Rule of Civil
Procedure 79(a); or
(ii) if Federal Rule of Civil
Procedure 58(a)(1) requires a
separate document, when the
judgment or order is entered
in the civil docket under
Federal Rule of Civil
Procedure 79(a) and when the
earlier of these events
occurs:
• the judgment or order is set
forth on a separate document,
or
• 150 days have run from entry
of the judgment or order in
the civil docket under Federal
Rule of Civil Procedure 79(a).
(B) A failure to set forth a judgment
or order on a separate document when
required by Federal Rule of Civil
Procedure 58(a)(1) does not affect the
9
Both FRCP 58 and FRAP 4 were amended in 2002 to
provide, together with FRCP 79, an integrated system
fostering promptness, accuracy, certainty and finality in
the entry of judgments by district courts. FRCP 58 and
FRAP 4 establish the “entry of judgment” by the district
court as the triggering event for the beginning of
tolling periods for the filing of notices of appeals and
post-judgment motions. Under FRCP 58, in the case of
specified uncomplicated orders, verdicts and judgments,
judgment is deemed entered by the court when the clerk
makes an entry of it under FRCP 79(a) showing its nature
and substance in the civil docket. See FRCP 58(a)(2)(A),
(b)(1). In the case of certain more complicated verdicts
and other grants of relief, judgment is deemed entered by
the court when the earlier of two events occurs: (1) when
it is set forth on a separate document approved by the
court and entered under FRCP 79(a); or (2) when 150 days
have run from the clerk’s entry of its nature and
validity of an appeal from that
judgment or order.
10
substance under Rule 79(a). See FRCP 58(a)(1), (a)(2)(B),
(b)(2); see also FRAP 4(a)(7)(B) (noting that a failure
to set forth a judgment on a separate document does not
affect the validity of an appeal from that judgment).
In applying these provisions to the case at hand, it
is important to note that FRCP 79(a) authorizes and
requires the clerk to make entries of all “orders,
verdicts and judgments” and the “substance of each order
or judgment of the court.”3 Thus, even when the court
fails to promptly approve the form of a separate document
judgment under FRCP 58(a)(2)(B), as in the present case,
the clerk is required and authorized to make such an
entry. Further, when the court fails to promptly approve
3
FRCP 79, in pertinent part, provides:
“The clerk shall keep a book known as "civil
docket" . . . and shall enter therein each
civil action to which these rules are made
applicable. . . . All papers filed with the
clerk, all process issued and returns made
thereon, all appearances, orders, verdicts, and
judgments shall be entered chronologically in
the civil docket. . . . These entries shall be
brief but shall show the nature of each paper
filed or writ issued and the substance of each
order or judgment of the court and of the
returns showing execution of process. . . .”
11
a judgment as required by Rule 58(a)(2)(B), the rules
require that if the court subsequently approves the form
of a separate document judgment before 150 days have run
from the clerk’s initial entry in the civil docket under
Rule 79(a), the judgment set forth on a separate document
approved by the court shall be entered in the civil
docket by the clerk and will supplant the clerk’s initial
entry pertaining to that judgment. See FRCP 58(b)(2)(i);
16A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE §
3950.1 (3d ed. Supp. 2006) (“[T]he deadlines in Rule
4(a)(1) will begin to run 150 days after the judgment or
order is entered in the civil docket (or when the
judgment or order is actually set forth on a separate
document, if that occurs before the 150th day).”).
In the present case, because the jury returned a
general verdict accompanied by interrogatories, FRCP
58(a)(2)(B)(i) required that the court promptly approve
the form of the judgment in a separate document, and that
it be promptly entered by the clerk. The court failed to
promptly approve the form of the judgment at that time.
Nonetheless, the clerk, under FRCP 79(a), promptly made
12
an entry in the civil docket in the form of a judgment on
the verdict showing the nature and substance of the
verdict in Burnley’s favor against the City. Accordingly,
under FRCP 58(b)(2)(B), when 150 days had run from the
clerk’s entry in the civil docket under FRCP 79(a), the
clerk’s entry by law constituted the entry of judgment of
the court for purposes of FRCP 58 and other Federal
Rules. Because the clerk’s entry under FRCP 79(a) was
recorded on February 2, 2004, the entry of judgment of
the court 150 days later fell on July 2, 2004.4 Thus, the
City of San Antonio’s notice of appeal, filed on October
18, 2004, was filed more than 30 days after the entry of
the judgment of the court and was not timely under FRAP
4(a)(1)(A).
The City acknowledges that its notice of appeal was
not filed within 180 days (150 days under the cap plus
4
As we explain in part III, infra, Burnley’s
filing of her motion for attorney’s fees on February
10, 2004 did not have the effect of delaying or
resetting the date of the entry of judgment, because
the City did not move to have her motion treated as a
Rule 59 motion until after its time for appealing the
judgment on the merits had run and the judgment had
become definitive and unappealable.
13
the subsequent 30 days in which to appeal) after the
clerk entered the judgment on the jury verdict in the
civil docket on February 2, 2004. The City argues,
however, that the clerk’s entry of judgment was invalid
because the court did not approve its form. The City
relies heavily on the language of FRCP 58(a)(2)(B)(i),
which requires that “the court must promptly approve the
form of the judgment, which the clerk must promptly
enter, when . . . the jury returns . . . a general
verdict accompanied by interrogatories.” The City
contends that because the court did not approve of the
form of the judgment that the clerk entered in favor of
Burnley, and because the verdict was not simply a general
verdict for which the clerk is required to promptly
prepare, sign, and enter a judgment, the clerk was not
authorized to enter anything in respect to Burnley’s
verdict in the civil docket. Therefore, the City reasons,
the clerk’s entry in the civil docket was a nullity for
purposes of Rule 58 and could not mature into an entered
judgment upon the passage of 150 days. Consequently, the
City concludes, there was no entry of judgment until the
14
City moved for and obtained the court’s approval of a
separate document judgment on October 18, 2004.
Accordingly, the City contends, its notice of appeal
filed on October 18, 2004 was timely and this court has
appellate jurisdiction.
The language upon which the City relies, however,
must be read in the context of other pertinent provisions
of the Federal Rules described and quoted above, and in
light of the history, purpose and design of the 2002
amendments, as explained in the Advisory Committee Notes.5
According to the Advisory Committee, FRCP 58(a) and FRAP
4(a)(7)(4), as amended in 2002, are designed to, inter
alia, work in conjunction with each other “to ensure that
appeal time does not linger on indefinitely.” FRCP 58
advisory committee note (2002 Amendments). In fact, the
City’s appeal in the present case raises the identical
question that the drafters addressed in resolving a
circuit split with the 2002 amendments: “When a judgment
or order is required to be set forth on a separate
5
See FRCP 58(a), (b); FRCP 79(a); FRAP 4(a)(7);
FRCP 58 advisory committee notes (2002 Amendments);
FRAP 4 advisory committee notes (2002 Amendments).
15
document under FED. R. CIV. P. 58 but is not, does the time
to appeal the judgment or order — or the time to bring
post-judgment motions, such as a motion for a new trial
under FED. R. CIV. P. 59 — ever begin to run?” FRAP 4
advisory committee notes (2002 Amendments). Among the
circuits, the First Circuit alone had held that parties
will be deemed to have waived their right to have a
judgment or order entered on a separate document three
months after the judgment or order is entered in the
civil docket. Id. (citing Foire v. Washington County
Cmty. Mental Health Ctr., 960 F.2d 229, 236 (1st Cir.
1992)). Although a majority of the circuits had rejected
this “cap” as contrary to the relevant rules, the
Advisory Committee noted that “no court has questioned
the wisdom of imposing such a cap as a matter of policy.”
Id. Therefore, the drafters of the 2002 amendments
decided to impose the 150-day cap provided for by FRCP
58(b)(2)(B) to determine the date of entry of the
judgment when the court fails to perform its duty to
approve a separate document judgment. The Advisory
Committee Notes to FRAP 4's 2002 Amendments state:
16
Both Rule 4(a)(7)(A) and Fed. R. Civ. P. 58 have
been amended to impose such a cap. Under the
amendments, a judgment or order is generally
treated as entered when it is entered in the
civil docket pursuant to FED. R. CIV. P. 79(a).
There is one exception: When FED. R. CIV. P.
58(a)(1) requires the judgment or order to be
set forth on a separate document, that judgment
or order is not treated as entered until it is
set forth on a separate document (in addition to
being entered in the civil docket) or until the
expiration of 150 days after its entry in the
civil docket, whichever occurs first. This cap
will ensure that parties will not be given
forever to appeal (or to bring a post judgment
motion) when a court fails to set forth a
judgment or order on a separate document in
violation of Fed. R. Civ. P. 58(a)(1).
FRAP 4 advisory committee’s note (2002 amendments)
(emphasis added).
Considering all of the foregoing, we reject the
City’s proffered interpretation of Rule 58(a)(2)(B) and
(b)(2)(B) as diametrically contrary to the text, purpose
and design of the integrated system established by FRCP
58 and 79 and FRAP 4. When the jury returns a verdict, the
clerk is authorized and required to enter a judgment on
the verdict in the civil docket under FRCP 79(a). Rule
79(a) plainly authorizes and requires the clerk to make
entries in the civil docket in respect to every order,
17
verdict and judgment, not only in respect to dispositions
exempted from the separate document rule under
58(a)(2)(A). In other words, the clerk’s basic authority
and duty in this respect arises primarily from Rule
79(a), not simply from Rule 58(a)(2)(A). Consequently,
the court’s failure to promptly approve of the form of a
separate document judgment as required by Rule
58(a)(2)(B) does not detract from the clerk’s independent
authority and duty under Rule 79(a) to promptly make the
appropriate entry in the civil docket.
Equally important, the City’s reading of Rule
58(a)(2)(A) would render the 150-day cap required by Rule
58(b)(2)(B) meaningless and defeat the purpose of the
2002 amendments. Under Rule 58(b)(2)(B), the cap only
begins to run upon the clerk’s entry of judgment in the
civil docket; if the clerk cannot make a valid entry of
judgment when the Court defaults on its duty, as the City
contends, the cap could never begin to run in the very
cases in which it was intended to apply. See FRAP 4
advisory committee note (2002 Amendments) (“This cap will
ensure that parties will not be given forever to appeal
18
(or to bring a post judgment motion) when a court fails
to set forth a judgment or order on a separate document
in violation of FED. R. CIV. P. 58(a)(1).”); FRCP 58,
advisory committee note (2002 amendments) (noting that
the amendments are designed “to ensure that appeal time
does not linger on indefinitely....” ); see also, 16 A
CHARLES ALAN WRIGHT ET AL., supra, § 3950.2 (“[I]f the judge
does nothing further in the case for 150 days, then it
should occur to even the most inattentive of appellate
counsel that it is time either to seek clarification from
the judge or to file an appeal[,]” and noting “[i]t is
obviously unfair to give a party with some notice of a
judgment longer to appeal than a party with no notice of
a judgment. The cap imposed by the Advisory Committee -
under which the 30 (or 60) day deadline to file an appeal
begins to run on the 150th day after the judgment is
entered in the civil docket - puts a party who learns of
a judgment that was not set forth on a separate document
in roughly the same position as a party who does not
learn of a judgment at all.”)
For these reasons, we find the City’s argument that
19
the clerk’s entry of a judgment on the verdict on
February 2, 2004 was a nullity to be without merit.
Although the court did not perform its duty to promptly
approve a separate document judgment, the clerk had
independent authority and a duty to enter the judgment
based on the verdict in the civil docket. When 150 days
passed after February 2, 2004 without the filing of a
separate document judgment the judgment prepared and
entered by the clerk by law was entered as the judgment
of the court on the merits on July 2, 2004. Because the
City did not file its notice of appeal until October 18,
2004, in excess of 30 days after the entry of the
judgment, it failed to file a timely notice of appeal.
Accordingly, unless the City’s alternate argument has
merit, we lack appellate jurisdiction and must dismiss.
III
Alternatively, the City argues that even if the
clerk’s February 2, 2004 entry of judgment was valid, its
effect as an entry of judgment under FRAP 4(a)(1)(A) was
delayed until September 16, 2004, the date upon which the
20
court ruled on Burnley’s attorney’s fee motion. The City
contends that this is so because on October 18, 2004, the
City, as authorized by FRAP 4(a)(4)(iii), moved under
FRCP 58(c)(2) for and obtained the court’s order that
Burnley’s FRCP 54(d)(2) attorney’s fee motion would be
treated as an FRCP 59 motion for new trial so as to delay
entry of judgment on the merits until the motion for
attorney’s fees had been ruled upon. According to the
City, this delayed the entry of judgment until the date
of the district court’s ruling awarding Burnley
attorney’s fees on September 16, 2004, thus shortening
the time between the entry of judgment and the notice of
appeal to 30 days. In our opinion, however, the district
court did not have the authority to modify the finality
or effect of the judgment on the merits. That judgment
was entered on July 2, 2004 and became unappealable when
the City’s time for appeal expired on August 2, 2004.
Because of FRAP 3 and 4's mandatory requirements
pertaining to how to take an appeal and to the time for
filing a notice of appeal, a court or a party seeking to
extend the time to file a notice of appeal or to reopen
21
the time to file an appeal may do so only as provided for
in FRAP 4. FRAP 4 provides that an extension of time to
file a notice of appeal may be granted in accordance with
FRAP 4(a)(5), and that the time to file an appeal may be
reopened in accordance with FRAP 4(a)(6). Consequently,
a court is not authorized to act outside of these
provisions or to use other rules not adopted for such
purposes to grant an extension or a reopening of a
party’s time to appeal. In the present case, of course,
the City did not move for an extension or reopening of
the time to appeal in the district court under FRAP
4(a)(5)or(6) and does not base any argument on them here.
Instead, the City persuaded the district court to act
beyond its authority in issuing an order under FRCP
58(c)(2) on October 18, 2004 that purported to
retroactively delay the finality of the judgment on the
merits until September 16, 2004. Under FRCP 58(c)(2),
the district court is authorized to order that a pending
motion for attorney’s fees have the same effect under
FRAP 4(a)(4) as a timely motion under FRCP 59, if the fee
22
motion was timely filed and if the court acts before a
notice of appeal of the merits judgment has been filed
and become effective.6 See Moody Nat. Bank of Galveston,
383 F.3d at 253. Furthermore, FRCP 58(c)(1) makes clear
that the court is authorized to issue that order only for
the purpose of delaying entry of judgment or extending
time for appeal in order to allow the court to tax costs
or award fees before the entry of judgment on the merits.
The purpose for which the court is authorized to
issue such an order under FRCP 58(c)(2) is further
explained by the FRCP 58 Advisory Committee’s Note. It,
provides, in pertinent part:
6
FRCP 58(c) provides:
(c) Cost or Fee Awards.
(1) Entry of judgment may not be delayed, nor
the time for appeal extended, in order to tax
costs or award fees, except as provided in Rule
58(c)(2).
(2) When a timely motion for attorney fees is
made under Rule 54(d)(2), the court may act
before a notice of appeal has been filed and
has become effective to order that the motion
have the same effect under Federal Rule of
Appellate Procedure 4(a)(4) as a timely motion
under Rule 59.
23
Ordinarily the pendency or post-judgment filing
of a claim for attorney's fees will not affect
the time for appeal from the underlying
judgment. See Budinich v. Becton Dickinson &
Co., 486 U.S. 196 (1988). Particularly if the
claim for fees involves substantial issues or is
likely to be affected by the appellate decision,
the district court may prefer to defer
consideration of the claim for fees until after
the appeal is resolved. However, in many cases
it may be more efficient to decide fee questions
before an appeal is taken so that appeals
relating to the fee award can be heard at the
same time as appeals relating to the merits of
the case. This revision permits, but does not
require, the court to delay the finality of the
judgment for appellate purposes under revised
FED. R. APP. P. 4(a) until the fee dispute is
decided. To accomplish this result requires
entry of an order by the district court before
the time a notice of appeal becomes effective
for appellate purposes. If the order is entered,
the motion for attorney's fees is treated in the
same manner as a timely motion under Rule 59.
FRCP 58 advisory committee’s note.
Thus, when it appears that judicial efficiency will
be served, FRCP 58(c)(2) vests the court with the
authority to delay the finality of the judgment on the
merits until a disputed fee motion is decided, so that an
appeal relating to the fee award can be heard at the same
time as an appeal relating to the merits. Of course, as
the Rule indicates, the court is not authorized to act
under FRCP 58(c)(2) if a notice of appeal has been filed
24
and has become effective, because the district court is
divested of jurisdiction upon the effectiveness of the
notice of appeal and jurisdiction over the case is then
vested in the appellate court. Ross v. Marshall, 426 F.3d
745, 751 (5th Cir. 2005), modified on other grounds on
denial of rehearing, 456 F.3d 442 (5th Cir. 2006).
Consequently, the purposes of the FRCP 58(c)(2) order and
its objective of increased judicial efficiency cannot be
served in such a case.
We conclude, therefore, that FRCP 58(c)(2), when read
in context with FRAP 4(a)(4)(iii), authorizes a district
court to delay the finality of a judgment on the merits
only for the purpose of allowing appeals from both the
merits judgment and the fee judgment to be taken at the
same time.7 Therefore, when such a delay cannot help
7
FRAP 4(a)(4), in pertinent part, provides:
(A) If a party timely files in the district
court any of the following motions under the
Federal Rules of Civil Procedure, the time to
file an appeal runs for all parties from the
entry of the order disposing of the last such
remaining motions:
. . . .
25
attain that purpose, the court has no reason or authority
to issue such an order. Thus, when an effective appeal
has already been taken from the merits judgment, as FRCP
58(c)(2) expressly notes, the court is not authorized to
attempt to delay the finality of that judgment. Further,
even though not expressly noted, when the motion for
attorney’s fees has already been decided, there is no
need or authority for the court to delay the finality of
the merits judgment. Finally, when the merits judgment
has already become final and unappealable, a mere delay
of that judgment is no longer possible, and the court
lacks any authority under FRAP 4(a)(4)(iii) and FRCP
58(c)(2) to modify the finality or the effect of the
merits judgment.8
(iii) for attorney's fees under Rule
54 if the district court extends the
time to appeal under Rule 58[.]
8
See Mendes Junior Int’l. Co. V. Banco Do Brasil,
S.A., 215 F.3d 306, 311-314 (2d Cir. 2000) (“[W]e do
not interpret the rules of procedure as allowing the
court to revive a losing party’s right to appeal after
both the original appeal period and the permissible
grace period have expired. . . . [Such an]
interpretation is contraindicated by the language of
Rule 58, is contrary to the purpose of allowing the
court to cause a Rule 54(d)(2) motion to delay the
26
merits appeal, and is inimical to the sanctity of final
judgments, which the strict deadlines imposed by FRAP
4(a) are designed to protect. . . . We see nothing to
indicate that a Rule 58/54/59 order was authorized to
revive a forgone right to appeal. The language of Rule
58 is more compatible with the conclusion that a Rule
58/54/59 order is to be entered, if at all, while there
remains the possibility that a notice of appeal from
the judgment, independent of any Rule 58/54/59 order,
could at some point become effective....[A]cceptance of
[the] contention that a Rule 58/54/59 order can revive
an expired right to appeal would subvert the “certainty
and stability which have hitherto been considered of
first importance in the appellate practice of the
federal courts.”) (internal citations omitted); see
also 16A C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE AND
PROCEDURE § 3950.3, at 136 n.5 (1999)(“The provisions in
[FRAP] Rule 4(a) and (b) respecting the grant of
extensions after the expiration of the original appeal
periods were originally developed in response to the
Supreme Court's decision in Hill v. Hawes. . . . [B]y
limiting the extension to 30 days, the framers of the
predecessors of Rule 4(a) and (b) met the objection of
the dissenters in Hill v. Hawes that granting such
relief at any time after entry of judgment would
disturb the finality doctrine.”); see also, American
Law Institute - American Bar Association Continuing
Legal Education, Civil Practice and Litigation
Techniques in Federal and State Courts; Draft Minutes -
Civil Rules Advisory Committee, October 23-25, 2005,
SL081 ALI-ABA 207, 230. (Discussing “a bizarre
possibility” similar to the district court’s Rule
58(c)(2) order in the present case: “[t]his reading
would establish discretionary authority to revive
expired appeal time long after the opposing parties had
thought the case concluded. Presumably trial courts
would seldom grant such orders, but any such order
would run contrary to the general purposes and
character of Appellate Rule 4.”); cf., Wikol ex rel.
Wikol v. Birmingham Pub. Sch. Bd. of Educ., 360 F.3d
27
 Accordingly, the district court exceeded its
authority under FRCP 58(c)(2) in its October 18, 2004
order purporting to revive and retroactively delay the
City’s time to appeal from the judgment on the merits
after that judgment had become final and unappealable on
August 2, 2004, as well as after the district court had
decided the fee motion on September 16, 2004.
Consequently, the City’s time to appeal expired on August
2, 2004, and therefore its October 18, 2004 notice of
appeal was not timely filed.
On the other hand, the City’s appeal of the award of
attorney’s fees was timely filed. The order awarding
Burnley attorney’s fees was entered on September 16,
2004. The notice of appeal filed on October 18, 2004
falls within the 30-day period of FRAP 4(a)(1)(A).9 The
604, 607 (6th Cir. 2004); Kenneth J. Servay, The 1993
Amendments to Rules 3 and 4 of the Federal Rules of
Appellate Procedure - A Bridge Over Troubled Water - Or
Just Another Trap?, 157 F.R.D. 587, 605 (1994).
9
Per FRAP 26(a), the last day of the period would
fall on a Saturday, so the period instead ends on the
next business day that is not a Saturday, Sunday, or
28
ADA allows recovery of such fees under 42 U.S.C. § 12205,
which provides that “[i]n any action . . . commenced
pursuant to this chapter, the court[,] in its discretion,
may allow the prevailing part . . . a reasonable
attorney’s fee and costs.” We review such awards for
abuse of discretion. No Barriers, Inc. v. Brinker Chili's
Texas, Inc., 262 F.3d 496, 498 (5th Cir. 2001). On
appeal, the City’s only argument is that Burnley is not
entitled to recover on the merits under the ADA and is
therefore not entitled to attorney’s fees. As the City
makes no argument that the district court has otherwise
abused its discretion in awarding attorney’s fees, we
must affirm the district court’s award.10
CONCLUSION
Because the City failed to timely appeal from the
legal holiday, i.e., October 18, 2004.
10
Burnley also seeks an award of appellate
attorney’s fees, but provides neither legal authority
nor evidence in support of such an award. Accordingly,
her argument is waived for inadequate briefing. L&A
Contracting Co. v. So. Concrete Servs. Inc., 17 F.3d
106, 113 (5th Cir. 1994).
29
judgment on the merits, we are not authorized to exercise
appellate jurisdiction in respect to that judgment.
Accordingly, we dismiss the City’s appeal in respect to
the judgment on the merits. The district court’s rulings
inconsistent herewith, including its ruling on the City’s
FRCP 58(c)(2) motion, are vacated. Because the City’s
appeal from the judgment awarding Burnley attorneys’ fees
was timely, we have exercised our appellate jurisdiction
in respect to that judgment. For the reasons assigned, it
is affirmed.
IT IS SO ORDERED.
30