United States Court of Appeals

for the Fifth Circuit

No. 22-10137 

United States of America, ex rel., Howard Beck, M.D., 

Plaintiff—Appellant, 

versus

St. Joseph Health System; Covenant Health System; 

Covenant Medical Center; Covenant Medical Group, 

Defendants—Appellees. 

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 5:17-CV-52

Before Wiener, Higginson, and Wilson, Circuit Judges.

Per Curiam: *

Relator-Appellant Howard Beck, M.D. (“Relator”) alleges that 

Defendants-Appellees healthcare entities (“Defendants”) engaged in an 

illegal scheme to pay physicians for patient referrals. We lack jurisdiction 

over this matter because the notice of appeal was untimely.

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

February 1, 2023

Lyle W. Cayce

Clerk

Case: 22-10137 Document: 00516630759 Page: 1 Date Filed: 02/01/2023
No. 22-10137

2 

The relevant dates are as follows: The district court granted summary 

judgment for Defendants and entered judgment on November 30, 2021. On 

December 10, 2021, Relator moved the district court to alter or amend the 

judgment pursuant to Fed. R. Civ. P. 59(e). This motion was denied on 

December 14 for failure to include a certificate of conference. That same day, 

Relator filed a second identical motion to alter or amend the judgment with 

the requested certificate of conference. On January 12, 2022, Relator’s 

second motion was denied. Relator filed his notice of appeal on February 9, 

2022. 

 “[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007). Parties ordinarily have 30 days from entry of judgment to file such a notice, Fed. R. 

App. P. 4(a)(1)(A),1

 but this requirement istolled by a timely post-judgment 

motion pursuant to Fed. R. Civ. P. 59 or 60. See Fed. R. App. P.

4(a)(4)(A)(iv), (v), (vi). If thus tolled, the time begins to run again from the

decision on the last timely post-judgment motion. See id. There is an exception, however: A successive post-judgment motion that seeks the same or 

similar relief as an earlier filed post-judgment motion does not further toll the 

time to appeal. See Charles L.M. v. N.E. Indep. Sch. Dist., 884 F.2d 869, 870 

(5th Cir. 1989) (holding that a successive identical post-judgment motion 

does not toll the time to appeal as recognized by “well-established authority 

in this and other circuits”); see also Thomas v. Stafflink, Inc., 855 F. App’x 

983, 984 (5th Cir. 2021), cert. denied, 142 S. Ct. 1386 (2022) (finding a notice 

of appeal untimely due to this principle); Edwards v. 4JLJ, L.L.C., 976 F.3d 

463, 465 (5th Cir. 2020) (same). Our court has held, so we are bound, that 

1 The government did not intervene here; therefore, the ordinary 30-day deadline 

under Fed. R. App. P. 4(a)(1)(A) applies. See U.S. ex rel. Eisenstein v. City of New York, 

New York, 556 U.S. 928, 931 (2009).

Case: 22-10137 Document: 00516630759 Page: 2 Date Filed: 02/01/2023
No. 22-10137

3 

this holds true when the second motion is identical to the first. Id. The 30-

day time for appeal ran from the district court’s denial of Relator’s first Rule 

59(e) motion.

This longstanding rule aims to prevent gamesmanship of the time to 

file an appeal. See Charles L.M., 884 F.2d at 871 (“The interest of finality 

requires that parties generally get only one bite at the rule 59(e) apple for the 

purpose of tolling the time for bringing an appeal.”). While the situation here

does not implicate gamesmanship, it falls within our precedent that a successive identical post-judgment motion does not serve to toll the deadline. See 

id. If ever a party is at risk of an untimely notice of appeal under this principle, 

it may file notice to preserve its appeal, even while a post-judgment motion 

is pending. See Ross v. Marshall, 426 F.3d 745, 751-52 (5th Cir. 2005). 

Defendants’ motion to dismiss is GRANTED, and this appeal is 

DISMISSED. 

Case: 22-10137 Document: 00516630759 Page: 3 Date Filed: 02/01/2023