* 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

United States Court of Appeals

Fifth Circuit

FILED

September 15, 2006

Charles R. Fulbruge III

Clerk

REVISED NOVEMBER 9, 2006

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

______________________

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
2

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
3

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.
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

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
Robinson, 361 U.S. 220, 229-30 (1960)).

5

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
6

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
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

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
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
validity of an appeal from that

judgment or order.

10

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
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

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
12

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
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

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
14

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
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

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
16

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:
17

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,
18

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
19

(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
20

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
21

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
22

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
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

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:
24

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
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

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
(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

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
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
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

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
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

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
30

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.