* Pursua nt to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

April 14, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-20402

KOSSMAN CONTRACTING COMPANY, INC.,

Plaintiff-Appellant,

versus

THE CITY OF HOUSTON, TEXAS,

Defendant-Appellee.

-------------------- Appeal from the United States District Court

for the Southern District of Texas

(4:96-CV-3100)

--------------------

Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM: *

Pla intiff-Appellant Kossman Contracting Company, Inc.

(“Kossman”) sued Defendant-Appe llee City of Houston (“the City”)

under 42 U.S.C. §§ 1981 and 1983. Kossman alleged that the City’s

“use of race and gender quotas in public contracting is an

unconstitutional use of government power.”

Kossman filed its first motion fo r a temporary restraining

order (“TRO”) and preliminary injunction in October 1997. In

September 1999, Kossman filed a supplement to its first motion for1 539 U.S. 244 (2003).

2 539 U.S. 306 (2003).

3 Kossman filed its original motion for summary judgment in

April 1998. During the next five years, it filed three supplements

to its original summary judgment motion.

2 a TRO and preliminary injunction, subsequently filing three further

motions seeking a TRO and preliminary injunction in, respectively,

February 2000, July 2000, and October 2000. The district court

summarily denied each of these motions.

In June 2002, Kossman filed a “Renewed Motion for Summary

Judgment and Preliminary Injunction” (“Renewed Motion”), in which

it asked the district court to enjoin the City’s “illegal

contracting preferences based on race , ethnicity, and sex.” The

Renewed Motion lists the City’s responses to Kossman’s requests for

admissi on and federal court cases that have held similar city

quotas unconstitutional; however, it fails to mention the legal

requi rements for a preliminary injunction. Neither does the

Renewed Motion contain a legal argument.

In December 2003, Kossman filed a “Fourth Supplement to Motion

for Summary Judgment,” in which it described the Supreme Court’s

opinions in Gratz v. Bollinger 1 and Grutter v. Bollinger 2 and asked

for “an immediate order strikin g” the City’s quota system. 3 The

district court summarily denied Kossman’s Renewed Motion and the

fourth supplement to its su mmary judgment motion in a single

sentence. It is from this denial that Kossman appeals.4 See 28 U.S

. C. § 1292(a)(1); Overton v. City of Austin

, 748

F.2d 941, 948-49 (5th Cir. 1984).

5 F ED

. R. A PP

. P. 4(a)(1).

6 Gill v. Monroe Count Dep’t of Soc. Servs.

, 873 F.2d 647, 648

(2d Cir. 1989); see also Birmingham Fire Fighters Ass’n 117 v.

Jefferson County , 290 F.3d 1250, 1254-55 (11th Cir. 2002) (same);

F.W. Kerr Chem. Co. v. Crandall Assoc., Inc.

, 815 F.2d 426, 428-29

(6th Cir. 1987) (same).

3 The first

—— and last

—— issue in this appeal is whether we

have appellate jurisdiction. The City asserts that we lack

appellate jurisdiction because Kossman’s appeal is untimely.

Specifically, the City argues that, becaus e Kossman’s Renewed

Motion seeks the same relief on the same facts as its four previous

motions, Kossman had to appeal the district court’s denial of its

first motion for a TRO and preliminary injunction to have been

timely. We agree.

Although the denial of a request for a preliminary injunction

is immediately appealable under 28 U.S.C. § 1292(a), 4 Rule 4(a) of

the Federal Rules of Appellate Procedure requires that “the notice

of appeal

. . . be filed

. . . within 30 days after the judgment or

order appealed from is entered.” 5 “An appeal from an order denying

a successive motion for a preliminary injunction, where the motion

is simply the same as the earlier motion, is untimely under Fed. R.

App. P. 4(a)(1) unless the notice of appeal was filed within thirty

days of the original denial.” 6 Kossman’s Renewed Motion is clearly

a successive motion that presents the same factual and legal bases

as its previous motions. Accordingly, because the district court7 Birmingham Fire Fighters

, 290 F.3d at 1254 (citing 16 C HARLES

A LAN W RIGHT

, A RTHUR R. M ILLER & E DWARD H. C OOPER

, F EDERAL P RACTICE AND P ROCEDURE

§ 3924.2 (2d ed. 1996)).

8 Emphasis in original.

4 denied Kossm an’s first motion for a TRO and a preliminary

injunction on October 21, 1997, Kossman only had until November 21,

1997 to appeal that denial, which it failed to do. The instant

appeal is thus untimely, and, absent some applicable exception, we

lack appellate jurisdiction.

Kossman points out

—— correctly

—— that there “is an exception

to the general rule against appealing from a successive motion if

there are changed circumstances, new evidence, or a change in the

law.” 7 Kossman argues that this exception applies because it

“appealed the denial of its Motion for Summary Judgment and

Preliminary Injunction filed after the release on the Supreme

Court’s decision in Gratz

. . . and Grutter ,” which “clarified the

standard for what constitutes a compelling interest sufficient to

justify the use of racial classifications by the government . . .

.” 8 We conclude that this exception does not apply to the instant

situation. As counsel for Kossman admitted at oral argument —— and

in its brief

—— the Supreme Court’s Gratz and Grutter opinions are

no more than a clarification of existing law, which was either

known to or determinable by Kossman when it filed its first9 See Adarand Constructors, Inc. v Pena

, 515 U.S. 200 (1995);

City of Richmond v. J.A. Croson Co. , 488 U.S. 469 (1989).

10 Birmingham Fire Fighters , 290 F.3d at 1254.

5 motion. 9 As such, the G ratz and Grutter opinions do not constitute

a change in the law.

Neither do we conclude that the City’s responses to Kossman’s

requests for admission worked a change in the facts or

circumstances of the case. Were we to hold that discovery

responses effect a change in facts or circumstances, a party could

file a successive motion each time it received a discovery

response, thereby frustrating “the policy of Rule 4 of the Federal

Rules of Appell ate Procedure, which requires in the interests of

efficiency and finality that a timely appea l be filed.” 1 0 The

factual and legal bases on which Kossman grounded it s Renewed

Motio n are indistinguishable from those offered in its first

motion. Accordingly, the exception does not apply. Kossman’s

a ppeal is untimely, and we lack appellate jurisdiction under 28

U.S.C. § 1292(a).

DISMISSED FOR LACK OF APPELLATE JURISDICTION.