* District Judge of the Western District of Louisiana,

sitting by designation.

United States Court of Appeals,

Fifth Circuit.

No. 90–2518.

Thomas A. BRITT, Individually, as President of the Houston

Patrolmen's Union, Local 109, et al., Plaintiffs–Appellants,

v.

Kathryn J. WHITMIRE, as Mayor and Chief Executive of the City of

Houston, Texas, et al., Defendants–Appellees.

March 31, 1992.

Appeals from the United States District Court for the Southern

District of Texas.

Before WILLIAMS, WIENER, Circuit Judges, and LITTLE, District Judge

*.

WIENER, Circuit Judge:

A police patrolmen's union appeals the district court's grant

of summary judgment in favor of the City of Houston on all of the

union's Fair Labor Standards Act claims. Finding that we lack

jurisdiction to consider this appeal, we dismiss.

I.

FACTS

On April 15, 1988, Thomas A. Britt brought suit individually

and as President of the Houston Police Patrolmen's Union, together

with approximately 800 other Houston police officers (collectively,

"Britt"), against the Houston Police Department, the City of
Houston, and Mayor Kathryn Whitmire (collectively, the "City").

The complaint alleged that (1) the City violated the Fair Labor

Standards Act (FLSA) by failing to pay cash in lieu of compensatory

time for overtime work in the absence of an agreement with the

plaintiffs' designated representative (the "comp time claim"); (2)

the City failed to compensate the officers for K–9, mounted,

motorcycle and other assignments; and (3) the City violated the

FLSA by failing to include incentive pay in the plaintiffs'

"regular rate of pay" for overtime payment calculations.

Britt moved for partial summary judgment on the comp time

claim on June 19, 1989. The City responded to Britt's motion and

simultaneously filed a cross-motion for summary judgment on all

claims on September 15, 1989. On May 15, 1990, the district court

issued a memorandum opinion in which it denied Britt's motion for

partial summary judgment and granted the City's "motion for partial

summary judgment" on the comp time claim. The district court did

not enter judgment in a separate document as required by

FED.R.CIV.P. 58. Britt filed a notice of appeal on May 30, 1990

naming "Thomas Britt, et al" as appellants. Britt amended the

notice of appeal on June 4, 1990 to list each of the other officers

as appellants. On June 8, 1990, the City filed a motion for entry

of final judgment, asserting that the city had moved for and was

entitled to summary judgment on all claims, but that the district

court's May 15 order granted only "partial summary judgment" and

addressed only the comp time claim.
On September 7, 1990, the district court issued an order

granting summary judgment in favor of the City on all claims and on

the same day entered final judgment in a separate document in

accordance with Rule 58. Britt never filed a separate notice of

appeal from the September 7 order. Instead, on October 11, 1990,

Britt filed a motion for leave to amend out of time his original

notice of appeal filed on May 30, 1990. In that motion, Britt

asserted that he had not filed a timely notice of appeal from the

September 7 order because he had miscalculated the date on which

such notice was due. Britt's motion was accompanied by an amended

notice of appeal which stated that Britt was appealing the

September 7 order granting full summary judgment in favor of the

City. On January 18, 1991, the district court granted Britt leave

to file the amended notice of appeal out of time.

II.

ANALYSIS

This case is fraught with jurisdictional issues. The City

argues that this court lacks jurisdiction over this appeal for two

reasons: (1) the district court abused its discretion in allowing

Britt to file an untimely amended notice of appeal, and (2) Britt's

original notice of appeal filed on May 30, 1990 became a nullity

when the City filed its motion for entry of final judgment.

A. Granting of Leave to File Untimely Amended Notice of Appeal.
 

1Allied Steel v. City of Abilene, 909 F.2d 139, 142 (5th

Cir.1990).

 

2Id.

 

3Id. at 143 n. 3.

 

4Note 1, supra.

FED.R.APP.P. 4(a)(1) requires that a notice of appeal be filed

within thirty days after the date of entry of the judgment or

order. FED.R.APP.P. 4(a)(5) provides that the district court, "upon

a showing of excusable neglect or good cause," may extend the time

for filing a notice of appeal if a motion therefore is filed not

later than thirty days after the last date for filing a notice of

appeal under Rule 4(a)(1). This court reviews extensions of time

under Rule 4(a)(5) for abuse of discretion, giving great deference

to the district court's determination of excusable neglect when the

application for extension is made before the expiration of the

initial time period during which a notice of appeal must be filed.1

When the application is made after that period has expired,

however, less deference is required,2 and the more lenient "good

cause" standard does not apply at all.3 Thus, when a party files

a motion for extension of time after the initial period for appeal

has expired, that party must make a showing of excusable neglect.

The City argues that the district court abused its discretion

in granting Britt's motion for an extension of time, which he filed

more than thirty days after the entry of the September 7 order,

because Britt failed to make a showing of excusable neglect. In

Allied Steel v. City of Abilene,4 Allied filed a motion to extend
the time for filing a notice of appeal more than thirty days after

the entry of judgment, asserting that (1) during the thirty-day

period after the entry of judgment Allied was preoccupied by an

urgent business situation, and (2) Allied had misconstrued the time

for filing a notice of appeal under Rule 4(a). The district court

granted Allied's motion, but we reversed, holding that the district

court abused its discretion because Allied's reasons for requesting

an extension of time did not constitute excusable neglect.

Britt's excuse is indistinguishable from the one asserted in

Allied. Therefore, we hold that the district court abused its

discretion in permitting Britt to amend his original May 30 notice

of appeal more than thirty days after the September 7 order which

the original notice was amended to include.

B. Validity of Britt's May 30, 1990 Notice of Appeal.

That holding does not fully dispose of the instant case,

however, because the district court issued two orders. That court

first granted partial summary judgment in favor of the City on the

comp time claim on May 15, 1990, from which Britt filed a timely

notice of appeal on May 30. The district court then issued an

order on September 7, 1990, purporting to grant summary judgment in

favor of the City on the comp time claim as well as on all

remaining claims. Britt chose not to file a separate notice of

appeal from that order; rather he attempted to amend his May 30

notice of appeal to include the September 7 order and its grant of
 

5784 F.2d 665 (5th Cir.) (en banc), cert. denied, 479 U.S.

930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986).

summary judgment on the remaining claims. Under Rule 4(a) Britt

was required to perfect a notice of appeal with respect to that

order within thirty days after September 7. As he did not, and as

he has not shown excusable neglect, he is precluded from pursuing

an appeal on the remaining claims. Previously, however, Britt had

filed a timely notice of appeal from the May 15 order granting

partial summary judgment on the comp time claim. Therefore, this

court has jurisdiction over Britt's May 30 appeal of that claim

unless, as urged by the City, Britt's May 30 notice of appeal with

respect to that claim was nullified.

FED.R.CIV.P. 4(a)(4) provides in part:

If a timely motion ... is filed in the district court by any

party: ... (iii) under Rule 59 to alter or amend the

judgment; ... the time for appeal for all parties shall run

from the entry of the order denying a new trial or granting or

denying any other such motion. A notice of appeal filed

before the disposition of any of the above motions shall have

no effect. A new notice of appeal must be filed within the

prescribed time measured from the entry of the order disposing

of the motion as provided above.

In Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc.,5 we

noted that under Rule 4(a)(4), a Rule 59(e) motion nullifies a

previously filed notice of appeal but a Rule 60 motion does not.

We established a bright-line rule (based solely on timing of filing

the motion relative to the date of the final order or judgment

sought to be modified) to determine the applicability of Rule

4(a)(4) to motions seeking to amend a judgment on grounds other

than purely clerical errors:
 

6Id. at 667.

 

7Id. at 668.

We hold that Rule 4 was not intended to apply to motions to

correct purely clerical errors, but it was intended to apply

to all other timely motions to amend a judgment served within

ten days of the judgment, even though some such motions might

also be considered timely by the district court if filed at a

later date. Accordingly, we hold that any post-judgment

motion to alter or amend the judgment served within ten days

after the entry of the judgment, other than a motion to

correct purely clerical errors covered by Rule 60(a), is

within the unrestricted scope of Rule 59(e) and must, however

designated by the movant, be considered as a Rule 59(e) motion

for purposes of Fed.R.App.P. 4(a)(4). If, on the other hand,

the motion asks for some relief other than correction of a

purely clerical error and is served after the ten-day limit,

then Rule 60(b) governs its timeliness and effect.6

We must determine the correct classification of the City's June 8,

1990 motion for entry of final judgment. If that motion was, as

the City urges, a timely-filed Rule 59(e) motion seeking to amend

the district court's judgment, then the district court's September

7, 1990 order granting summary judgment on all claims rendered

Britt's May 30 notice of appeal a nullity under Rule 4(a)(4). On

the other hand, if, as Britt argues, the City's motion sought

merely to correct a clerical error under Rule 60(a), then Rule

4(a)(4) did not apply and Britt's notice of appeal remained

intact.7

(1) Classification of the Motion

No matter how it is labeled, a motion is treated as one made

under Rule 59(e) if it "calls into question the correctness of a
 

8Id. at 669–70.

 

9Dura–Wood Treating Co., Division of Roy O. Martin Lumber

Co. v. Century Forest Industries, Inc., 694 F.2d 112, 114 (5th

Cir.), cert. denied, 459 U.S. 865, 103 S.Ct. 144, 74 L.Ed.2d 122

(1982).

 

10Harcon Barge, 784 F.2d at 669.

 

11Warner v. City of Bay St. Louis, 526 F.2d 1211, 1212 (5th

Cir.1976).

judgment" and seeks to alter or amend it.8 Although a motion under

Rule 60(a) also seeks to correct a judgment, Rule 60(a) provides

relief only:

[W]here the record makes apparent that the court intended one

thing but by merely clerical mistake or oversight did another.

Such a mistake must not be one of judgment or even of

misidentification, but merely of recitation, of the sort that

a clerk or amanuensis might commit, mechanical in nature...."

9

Rule 60(a) does not apply to a motion seeking correction of an

error of "substantive judgment" 10 or an error that affects

substantial rights of the parties.11

The City's motion for entry of final judgment provided in

part:

The Court has entered an order granting Defendants' Motion for

Summary Judgment. However the order does not specifically

address claims raised by the Plaintiffs in their Complaint on

which they did not move for summary judgment, but on which

Defendants did move for summary judgment. Defendants moved

for summary judgment on all of Plaintiffs' claims. Defendants

have assumed that the Court intended to grant summary judgment

on all of Plaintiffs' claims, but the last paragraph of the

Court's order refers to granting Defendants' Motion for

Partial Summary Judgment. Defendants are assuming that this

was a typographical error (emphasis added).
 

12Harcon Barge, 784 F.2d at 668–70.

 

13Id. at 670.

 

14694 F.2d 112 (5th Cir.1982).

Britt argues that as the City expressly stated in its motion that

it sought the correction of a typographical error in the district

court's May 15 order, the motion necessarily qualified as a Rule

60(a) motion. Our analysis is not quite that simple, however, as

it is not the label that a party places on a motion or the

perceived nature of the relief sought, but the true nature of the

relief sought that determines under which rule a motion should be

classified.12

Although, as already noted, we established a bright-line rule

in Harcon Barge to distinguish between substantive motions under

Rule 59(e) and Rule 60(b) based on relative time of filing, we have

not established a definitive rule for determining whether a motion

should be considered merely clerical under Rule 60(a) or

substantive under either Rule 59(e) or Rule 60(b).13 Therefore, we

must draw guidance from prior decisions on this question.

Dura–Wood Treating Co., Division of Roy O. Martin Lumber Co. v.

Century Forest Industries, Inc.14 gives an example of the type of

relief covered under Rule 60(a). The parties had stipulated of

record that reasonable and necessary attorneys' fees were $4,680

for trial and $2,100 for appeal. The trial court's findings of

facts, however, incorrectly recited that the parties had stipulated

attorneys' fees at only $2,100, and the trial court rendered

judgment in favor of the plaintiff for $100,000 damages plus $2,100
 

15Id. at 113–14.

 

16720 F.2d 832 (5th Cir.1983).

 

17745 F.2d 335 (5th Cir.1984).

in attorneys' fees. We reversed the judgment in part, affirmed the

damages in a lesser amount, and remanded to the trial court for

entry of a judgment consistent with our opinion. On remand, the

trial court entered judgment for the lesser amount of damages, plus

the correct amount of attorneys' fees as stipulated by the parties.

The defendants appealed, arguing, inter alia, that the trial court

had abused its discretion in increasing the award of attorneys'

fees. We held that the trial court's action was proper. We

concluded that the trial court clearly intended to recite the

parties' stipulation regarding attorneys' fees into its original

judgment and award that amount, but that, through a clerical error,

the court had mis-recited the stipulation. We found that the trial

court was entitled to correct its original award of attorneys' fees

because Rule 60(a) allows the court, on motion by a party or on its

own initiative, to correct a clerical error.15

Trahan v. First National Bank of Ruston16 and In re Galiardi17

provide examples of corrective actions that involve more than mere

clerical errors falling under Rule 60(a). In Trahan, the district

court held the bank liable for conversion of 15,000 shares of stock

and ordered the bank to return the stock to the plaintiff. We

affirmed the district court's judgment. After our decision, the

district court, recognizing that the value of the stock had fallen

since the date of conversion, amended its original award to require
 

18Trahan, 720 F.2d at 834.

the bank to return the shares of stock and to pay the difference in

value of the stock between the date of conversion and the date of

judgment. The bank appealed the amended award. We held that the

court's amendment was not to correct a clerical error and thus was

not under the aegis of Rule 60(a), as it constituted a substantive

judgment by the district court.18

Similarly, in In re Galiardi the plaintiffs filed a diversity

suit in federal district court in Texas. The defendants moved to

transfer the case to a federal district court in New York,

asserting both forum non conveniens and improper venue. The Texas

court transferred the case to New York without specifying the basis

for the transfer. The defendants moved the New York court to

dismiss the action as time-barred. Whether the suit was

time-barred depended on whether the Texas time-bar rule or the New

York time-bar rule applied. If the basis for the transfer to New

York was forum non conveniens, then the Texas rule would apply and

the suit would not be time-barred. If, however, the basis for the

transfer was that venue was improper in Texas, then the New York

time-bar rule would apply to bar the suit.

The New York district court concluded that the transfer had

been based on forum non conveniens and that the suit was not

barred. The defendants then filed a "Motion to Resettle Texas

Transfer Order" in the Texas district court, requesting that court

to specify the basis for its original transfer order, which had
 

19Galiardi, 745 F.2d at 337.

 

20697 F.2d 1125 (D.C.Cir.1983).

 

21825 F.2d 1324 (9th Cir.1987).

been entered two years earlier. The defendants based that motion

on Rule 60(a), apparently realizing that a court can grant a motion

under that rule "at any time" and that the time limits for actions

under both Rule 59(e) and Rule 60(b) had already expired. The

Texas court subsequently entered an order amending its earlier

transfer order to specify that the case had been transferred

because venue was improper in Texas.

The plaintiff asked this court for a writ of mandamus to

vacate that amended order by the Texas court. We held that the

amendment was not made pursuant to Rule 60(a) because it had

significant effect on the substantive rights of the parties and was

more than the mere correction of a clerical mistake. As Rule 60(a)

provided no support for the amendment and as the time limits for

corrections under Rules 59(e) and 60(b) had expired, we held that

the Texas court had no jurisdiction to enter the amended order.19

For examples of what constitutes a Rule 59(e) motion, we turn

to Cosgrove v. Smith20 and Barry v. Bowen.21 In Cosgrove, male

offenders of District of Columbia law who had been sentenced to

federal prison brought suit against the Attorney General of the

United States, challenging the application of the federal parole

guidelines to decisions on their parole. Their complaint included

statutory and equal protection challenges to the guidelines, as
 

22Cosgrove, 697 F.2d at 1127–28.

well as a sex discrimination claim. The district court granted the

government's motion for summary judgment, but the judgment

specifically mentioned only the statutory and equal protection

challenges. The plaintiffs filed a motion seeking clarification

that the district court had not ruled on the sex discrimination

claim. The district court denied that motion. The District of

Columbia Circuit held that the district court's judgment had

disposed of the entire case, including the sex discrimination

claim, and that the plaintiffs' motion for clarification therefore

had sought an amendment of the judgment. Thus, concluded the

court, the motion qualified as a motion to alter or amend the

judgment under Rule 59(e).22

In Barry, the claimant sought district court review after the

Appeals Council reversed an Administrative Law Judge's decision

allowing his claim for disability benefits under the Social

Security Disability Amendments of 1980. The district court entered

an order granting the claimant's motion for summary judgment and

denying that of the government. The government subsequently filed

a "Motion for Clarification," seeking clarification of the district

court's order with regard to whether benefits were to be awarded

immediately or whether additional administrative proceedings were

to be conducted. The Ninth Circuit held that the government's

motion was for relief under Rule 59(e). The court noted that "a

motion seeking minor alterations in the judgment is properly one

under Rule 59(e)." The court concluded that such was the aim and
 

23Barry, 825 F.2d at 1328 n. 1.

effect of the government's motion for clarification.23

We hold that, in the instant case, the City's motion for entry

of final judgment was not a Rule 60(a) motion. Even though the

motion stated that the City "assumed" that the district court had

committed a typographical error, in reality the effect of granting

the motion was more than a mere correction of a clerical error by

the district court. The motion sought to amend the district

court's May 15 order to grant summary judgment on two of Britt's

claims, an action clearly affecting substantial rights of the

parties. Unlike Dura–Wood, it is not apparent from the record of

the instant case that the district court intended to grant summary

judgment on all claims in its May 15 order but failed to do so

because of a clerical error. Rather, this case is closely

analogous to Cosgrove and Barry, in which the motions sought

substantive alterations in the judgments. Thus, the City's motion

was in fact and in law a Rule 59(e) motion. As that motion sought

more than clarification of a clerical error, Rule 60(a) was

inapplicable.

(2) Timeliness of the Motion

Having determined that the City's motion for entry of final

judgment was not a Rule 60(a) motion, we must now determine whether

the motion was timely filed. A Rule 59(e) motion must be filed

within ten days after the entry of judgment to be timely. As we
 

24Harcon Barge, 784 F.2d at 667.

 

25846 F.2d 11 (5th Cir.1988), cert. denied, 490 U.S. 1093,

109 S.Ct. 2436, 104 L.Ed.2d 993 (1989).

 

26Id. at 12.

held in Harcon Barge, if the City filed the motion in a timely

manner, then under Rule 4(a)(4) the motion destroyed the

effectiveness of Britt's May 30 notice of appeal. If, however, the

motion was not timely under Rule 59(e), then Rule 60(b) governed

its effect and Britt's notice of appeal remained intact.24

In Craig v. Lynaugh,25 the district court issued a memorandum

order dismissing the plaintiff's complaint as frivolous. The

district court did not enter a separate judgment in compliance with

Rule 58 at that time. Five months later, the plaintiff filed both

a motion to vacate the judgment and a notice of appeal from the

dismissal order. The district court denied the motion to vacate

and entered final judgment pursuant to Rule 58. The plaintiff did

not file another notice of appeal.

On appeal, we noted that, provided the motion to vacate was

filed within ten days after entry of judgment, it was actually a

Rule 59(e) motion because it challenged the correctness of the

order of dismissal, and it destroyed the plaintiff's notice of

appeal under Rule 4(a)(4). But, if the motion to vacate was not

timely as a Rule 59(e) motion, then under Harcon Barge the motion

did not nullify the notice of appeal.26
 

27Id. at 13.

We held in Craig that because the district court had not

complied with Rule 58 in its initial order of dismissal, the

judgment was not final at the time of the plaintiff's motion to

vacate, but the motion to vacate was nonetheless effective. We

held further that if a Rule 59(e) motion is filed before a final

judgment has been entered, the motion is timely whenever filed and

serves to nullify a previously filed notice of appeal.27 Therefore,

we concluded, such motion to vacate was a timely Rule 59(e) motion

and nullified the plaintiff's notice of appeal. As the plaintiff

did not file a new notice of appeal within thirty days after entry

of final judgment, we dismissed the appeal for lack of

jurisdiction.

Craig is applicable to this case. Here, as in Craig, the

district court did not enter a separate judgment pursuant to Rule

58 to accompany its May 15 order granting partial summary judgment.

Thus there was no final judgment either when Britt filed his May 30

notice of appeal or later when the City filed its June 8 motion for

entry of final judgment. The City's motion was a Rule 59(e) motion

and, under Craig, it was timely when filed; thus, it nullified

Britt's May 30 notice of appeal. As Britt failed timely to file a

new notice of appeal after the entry of final judgment on September

7, we lack jurisdiction over this appeal and therefore must dismiss

it.

III.
CONCLUSION

We have no jurisdiction over this appeal because we are not

presented with a valid notice of appeal with respect to any order

or judgment of the district court. First, the district court

abused its discretion in granting Britt leave to file an untimely

amended notice of appeal because Britt's efforts to do so occurred

more than thirty days after the last date to file a notice of

appeal timely and then he made no showing of excusable neglect.

Second, even had Britt attempted to amend his May 30 notice of

appeal in a timely manner, he could not have done so because that

notice of appeal was rendered nugatory by the City's Rule 59(e)

motion for entry of final judgment. Consequently, Britt was

required to file a new notice of appeal within thirty days after

the district court's entry of final judgment on September 7. As he

did not, we lack jurisdiction. For these reasons, this appeal is

DISMISSED.