IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-40975

Summary Calendar

LEILA HERNANDEZ, 

 Plaintiff - Appellant

v.

UNIVERSITY OF TEXAS - PAN AMERICAN; UNIVERSITY OF TEXAS 

RIO GRANDE VALLEY, 

 Defendants - Appellees

Appeals from the United States District Court 

for the Southern District of Texas

USDC No. 7:17-CV-197

Before CLEMENT, COSTA, and WILLETT, Circuit Judges.

PER CURIAM:*

Leila Hernandez, a tenured professor at University of Texas-Pan 

American (“UTPA”), lost her position after UTPA was abolished and replaced 

by University of Texas Rio Grande Valley (“UTRGV”) pursuant to Senate Bill 

24. Hernandez sued both Universities and other individuals for sex and

national origin discrimination in 2015, and filed a charge with the EEOC. This 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

June 28, 2018

Lyle W. Cayce

Clerk

 Case: 17-40975 Document: 00514533044 Page: 1 Date Filed: 06/28/2018
court eventually affirmed the dismissal of that suit for failure to state a claim

in January 2018. Hernandez v. Bailey, 716 F. App’x 298 (5th Cir. 2018). 

Hernandez initiated a new lawsuit in state court against UTPA and 

UTRGV in May 2017, which was removed to federal court. Defendants then 

moved to dismiss for failure to state a claim. The district court again granted 

relief to defendants and issued a Final Judgment dismissing the suit with 

prejudice on August 17, 2017. Hernandez’s notice of appeal was untimely filed 

on September 19, 2017.

Hernandez tried to overcome her tardiness by filing a motion for leave to 

file the notice of appeal out of time on September 21. But the district court 

denied the motion on September 29, noting that her excuses were unpersuasive 

and contradictory. A motion to reconsider this decision was also denied on 

December 11, 2017. Hernandez timely filed notices of appeal to these rulings

on October 27 and January 10, 2018, respectively.

The 30-day deadline to file a notice of appeal, set by both Federal Rule of 

Appellate Procedure 4(a)(1) and 28 U.S.C. § 2107, is a mandatory and 

jurisdictional requirement. Sudduth v. Tex. HHS Comm’n, 830 F.3d 175, 177 

(5th Cir. 2016). Accordingly, our focus is whether the district court erred in 

refusing to grant an extension of time to this deadline under Federal Rule of 

Appellate Procedure 4(a)(5) and denying the defendant’s motion to reconsider 

this decision. 

The court’s denial of relief under Rule 4(a)(5) is reviewed for abuse of 

discretion. Latham v. Wells Fargo Bank, N.A., 987 F.2d 1199, 1203 (5th Cir. 

1993). The Rule permits a district court to extend a party’s deadline to file a 

notice of appeal when “that party shows excusable neglect or good cause.” Fed. 

R. App. P. 4(a)(5)(A)(ii). This Court has applied the excusable neglect standard 

enunciated by the Supreme Court in Pioneer Investment Services Co. v. 

Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993) when interpreting 

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this Rule. Halicki v. La. Casino Cruises, Inc., 151 F.3d 465 (5th Cir. 1998).

Accordingly, a determination of “excusable neglect” is an equitable conclusion

that depends on context-specific factors such as (1) “the danger of prejudice” of 

a grant to the non-moving party, (2) “the length of the delay and its potential 

impact on judicial proceedings,” (3) the justification for the delay, “including 

whether it was within the reasonable control of the movant,” and (4) “whether 

the movant acted in good faith.” Id. at 468 (quoting Pioneer, 507 U.S. at 395). 

Here, the delay was minimal and prejudice slight: the notice of appeal 

was filed only one day late on September 19, and the motion for leave to extend 

the deadline was filed only a few days after that. But the motion’s proffered 

justifications were weak. Notably, the defendant was represented by multiple 

lawyers, yet the filing only discussed the obstacles of a single attorney, who 

was not the designated attorney-in-charge. The explanations for the attorney’s 

delay were not particularly strong: he asserted that his firm had a busy trial 

practice, his wife had surgery on the day of the deadline, his legal assistant 

had not calendared the deadline, and he had to take a day off from work due 

to Hurricane Harvey. We cannot conclude that the district court abused its 

discretion in ruling that this was an inadequate justification for the collective 

failure of all of Hernandez’s attorneys to file notice within the 30-day deadline.

Cf. Id. at 470 (noting that when the applicable rule is clear, the district court’s

conclusion that neglect was inexcusable is “virtually unassailable”).

Hernandez relies primarily on an unpublished, per curiam opinion to 

demonstrate the district court abused its discretion, Sparks v. L.M. Berry & 

Co., No. 98-60627, 1999 WL 499519 (5th Cir. June 8, 1999). Her reliance is 

misplaced. For one, the district court granted a motion to extend the deadline

in Sparks. Here, by contrast, we decide whether the district court’s denial of 

an extension was an abuse of discretion. Moreover, the underlying facts are 

different—involving the inadvertent miscalculation of a single attorney with a 

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busy practice and a sick child. See id. at *3. In short, Sparks does not impact 

our analysis.

Hernandez’s motion to reconsider fares no better. Whether styled as a 

Rule 59(e) or Rule 60(b) motion,1 we again review the court’s denial for abuse 

of discretion, Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 353 (5th Cir. 

1993), and find none.

Hernandez’s motion challenged the district court’s opinion by providing 

affidavits from two other attorneys who worked on the case. Their submissions 

(which clearly could have been provided with the previous motion) merely 

stated they were not specifically responsible for recording the deadlines in this 

case, affirmed the veracity of the first attorney’s statements, and noted three 

unrelated cases that had been impacted by Hurricane Harvey. 

Such assertions fail to justify relief under Rule 59(e), which is “an 

extraordinary remedy that should be used sparingly.” Templet v. HydroChem 

Inc., 367 F.3d 473, 479 (5th Cir. 2004). Nor do they satisfy any of the 

enumerated bases for Rule 60(b) applicable here. Specifically, they fail under

Rule 60(b)(1), which includes “excusable neglect” as defined by Pioneer, 507 

U.S. at 392–95, and the catch-all provision in Rule 60(b)(6), see Hess v. Cockrell, 

281 F.3d 212, 216 (5th Cir. 2002) (noting that relief Rule 60(b)(6) requires a 

showing of “extraordinary circumstances” (internal quotation omitted)). At the 

very least, it was certainly not an abuse of discretion for the district court to so 

conclude.

AFFIRMED.

 

1 The district court analyzed the motion under both, and Hernandez has named her 

motion as both a Rule 59 and Rule 60 motion on appeal. 

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