FILED

United States Court of Appeals

Tenth Circuit

June 8, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ERICK R. YOST,

 Plaintiff-Appellant,

v.

MIKEL L. STOUT; JENNIFER L.

JONES; NANCY ANSTAETT;

PATRICK BRAZIL; THEODORE B.

ICE; CHRISTINA PANNBACKER;

WILLIAM B. SWEARER; CAROLYN

TILLOTSON; ROBERT FLEMING;

BRUCE BUCHANAN; MARY

DAVIDSON COHEN; ROBERT A.

CREIGHTON; DAVID J. KING; and

LAWRENCE E. SHEPPARD, in their

official capacities as Members of the

Kansas Commission on Judicial

Qualifications; EDWARD G.

COLLISTER, JR., in his official

capacity as Commission Examiner for

the Kansas Commission on Judicial

Qualifications,

 Defendants-Appellees.

No. 09-3099

Appeal from the United States District Court 

for the District of Kansas

(No. 5:06-CV-04122-JAR)

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* After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would not materially assist in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

2

Submitted on the briefs:*

Austin K. Vincent, Topeka, Kansas; James Bopp, Jr., Josiah Neeley, and Anita Y.

Woudenberg, of Bopp, Coleson & Bostrom, Terre Haute, Indiana, for PlaintiffAppellant.

Stephen O. Phillips, Assistant Attorney General, Topeka, Kansas; George T. Patton,

Jr., and Marisol Sanchez, of Bose McKinney & Evans LLP, Indianapolis, Indiana,

for Defendants-Appellees.

Before LUCERO, HOLLOWAY, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Plaintiff-Appellant Erick R. Yost appeals from the district court’s adverse

judgment on his 42 U.S.C. § 1983 challenge to the “endorsement clause” of the

Kansas Code of Judicial Conduct that generally prohibits a judge or judicial

candidate from publicly endorsing or opposing another candidate for public office. 

We sought additional briefing from the parties on whether the notice of appeal in

this matter was timely filed. We conclude that it was not. Accordingly, we do not

have jurisdiction over the merits of this appeal and dismiss it for lack of

jurisdiction.

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1 The endorsement clause, Canon 5A(1)(b), provides that “a judge or a

candidate for election or appointment to judicial office shall not . . . publicly

endorse or publicly oppose another candidate for public office.” Kan. S. Ct. R.

601A, Canon 5A(1)(b). Canon 5C(1)(b)(iv) creates an exception to that

prohibition: “a judge or candidate subject to public election may . . . publicly

endorse or publicly oppose other candidates for the same judicial office in a

public election in which the judge or judicial candidate is running. Kan. S. Ct. R.

601A, Canon 5C(1)(b)(iv).

We cite the Kansas Code of Judicial Conduct set forth in Kansas Supreme

Court Rule 601A because Judge Yost filed suit in November 2006. See Kan. S.

Ct. R. 601B (noting that “[a]ll alleged violations committed before March 1,

2009, shall be subject to Rule 601A”).

3

BACKGROUND

On November 1, 2006, Erick R. Yost, a Kansas state district court judge,

filed suit in the United States District Court for the District of Kansas against

defendants in their official capacities. Judge Yost sought declaratory and

injunctive relief, pursuant to 42 U.S.C. § 1983, and claimed that several provisions

of the Kansas Code of Judicial Conduct, namely, Canon 5A(1)(b), Canon 5A(1)(e),

and Canon 5C(2), violated his rights of free speech and freedom of association

under the First and Fourteenth Amendments to the U.S. Constitution. This appeal

concerns only his challenge to Canon 5A(1)(b), the “endorsement clause.”1

After both sides filed motions for summary judgment, the district court

issued a Memorandum and Order on November 16, 2008, granting summary

judgment in favor of defendants on Judge Yost’s endorsement-clause challenge and

granting summary judgment in favor of Judge Yost on all other claims. The court

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2 The judgment read in relevant part as follows:

IT IS ORDERED AND ADJUDGED pursuant to

Memorandum and Order (Doc. 72), filed November 16, 2008,

plaintiff’s motion for summary judgment (Doc. 50) is granted

on the solicitation clauses, Canon 5A(1)(e) and 5C(2)[,] and

denied on the endorsement clause 5A(1)(b). Defendants’

motion for summary judgment (Doc. 52) is denied on the

solicitation clauses, Canon 5A(1)(e) and 5C(2)[,] and granted

on the endorsement clause 5A(1)(b).

IT IS FURTHER ORDERED that each party is to bear

their own costs and attorney fees.

Aplt. App. at 57 (J., filed Nov. 25, 2008).

3 Under the then-operative provisions of Federal Rule of Civil

Procedure 6(a)(2), the intervening Thanksgiving holiday and the weekend days

were excluded from the computation of the ten-day period, resulting in the tenth

day falling on December 10, 2008. On December 1, 2009, numerous amendments

to the Federal Rules of Civil Procedure took effect. Among other things, those

amendments eliminated the intervening-holidays-and-weekends exclusion of Rule

6(a)(2), which in the view of the advisory committee “made computing deadlines

unnecessarily complicated and led to counterintuitive results.” Fed. R. Civ. P. 6

advisory committee’s note (2009 amendments). Those amendments also

lengthened the period for filing a Rule 59(e) motion to twenty-eight days (instead

(continued...)

4

entered judgment in accordance with its Memorandum and Order on November 25,

2008. In the last sentence of the judgment, the district court sua sponte ordered the

parties to bear their own costs and attorney’s fees.2

On December 10, 2008, Judge Yost filed a motion styled “Motion to Alter or

Amend Judgment,” pursuant to Federal Rule of Civil Procedure 59(e). Judge

Yost’s motion was filed within the ten-day deadline prescribed at that time by Rule

59(e).3

 Judge Yost challenged the district court’s denial of attorney’s fees and

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3

(...continued)

of ten days). Fed. R. Civ. P. 59(e). In the view of the advisory committee,

“[e]xperience has proved that in many cases it is not possible to prepare a

satisfactory post-judgment motion in 10 days, even under the former rule that

excluded intermediate Saturdays, Sundays, and legal holidays.” Fed. R. Civ. P.

59 advisory committee’s note (2009 amendments).

The 2009 amendments do not materially affect our analysis or the ultimate

disposition of this appeal. Judge Yost’s motion was unquestionably timely under

either the version of Rule 59(e) in effect at the time that he filed the motion or

under the version in effect as of December 1, 2009. As discussed infra, the

salient question before us is whether it is actually proper to view Judge Yost’s

motion as being brought under Rule 59, as opposed to Rule 54. And the 2009

amendments have no direct impact on our resolution of that question. When the

Supreme Court amended the rules, however, it provided “[t]hat the foregoing

amendments . . . shall take effect on December 1, 2009, and shall govern in all

proceedings thereafter commenced and, insofar as just and practicable, all

proceedings then pending.” Order of Mar. 26, 2009, 2009 U.S. Order 17 (C.O.

17) (emphasis added). Therefore, with an understanding that our analysis will not

be affected by doing so, we deem it to be “just and practicable” to follow the

Court’s instruction; unless otherwise noted, we will be guided by the language of

the current version of the Federal Rules of Civil Procedure.

4 Rule 54(d)(2) provides in relevant part that “[a] claim for attorney’s

fees . . . must be made by motion[,] unless the substantive law requires those fees

to be proved at trial as an element of damages,” and that such a “motion must . . .

be filed no later than 14 days after the entry of judgment.” Fed. R. Civ. P.

54(d)(2). 

5

argued that he was entitled to an award of attorney’s fees as a prevailing party

under 42 U.S.C. § 1988. Judge Yost contended that the court should have waited to

decide the issue until after he had filed a motion for attorney’s fees, which would

not have been due until fourteen days after the entry of judgment.4

 He therefore

attached a motion for attorney’s fees and expenses, pursuant to Rule 54(d), and

requested that the court alter or amend its judgment of November 25, 2008, as to

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5 On December 1, 2009, numerous amendments to the Federal Rules of

Appellate Procedure went into effect. Those amendments have no bearing on our

analysis or the ultimate resolution of this appeal. However, as with the

contemporaneous amendments to the Federal Rules of Civil Procedure, the

Supreme Court directed “[t]hat the foregoing amendments . . . shall take effect on

December 1, 2009, and shall govern in all proceedings in appellate cases

thereafter commenced and, insofar as just and practicable, all proceedings then

pending.” Order of Mar. 26, 2009, 2009 U.S. Order 15 (C.O. 15) (emphasis

added). Therefore, recognizing that our analysis will not be altered by doing so,

we consider it to be “just and practicable” to refer here to the language of the

current federal appellate rules. 

6

the issue of attorney’s fees.

On April 9, 2009, the district court ruled on the “Motion to Alter or Amend

Judgment,” construing it as a motion for attorney’s fees under Rule 54(d) and not

as a motion to alter or amend the judgment under Rule 59(e). The court determined

that “[t]he motion wholly concern[ed] liability for attorneys’ fees[] and not the

merits of the claims in this case.” Aplt. App. at 72 (Mem. & Order, filed Apr. 9,

2009). The court then concluded that Judge Yost was a prevailing party under §

1988 and granted the motion.

On April 14, 2009, Judge Yost filed a notice of appeal from the district

court’s judgment of November 25, 2008.5

 On July 24, 2009, we raised the issue of

whether the notice of appeal was timely filed and ordered the parties to file

jurisdictional memoranda, which they did.

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7

DISCUSSION

A timely-filed notice of appeal is “mandatory and jurisdictional.” Budinich

v. Becton Dickinson & Co., 486 U.S. 196, 203 (1988); accord Utah Women’s

Clinic, Inc. v. Leavitt, 75 F.3d 564, 566 (10th Cir. 1995). Rule 4 of the Federal

Rules of Appellate Procedure provides that a notice of appeal in a civil case where

the United States is not a party must be filed within thirty days after the entry of

the judgment or order from which an appeal is taken. Fed. R. App. P. 4(a)(1)(A). 

That time period may be tolled if, among other reasons: (1) a party timely files a

motion for attorney’s fees under Federal Rule of Civil Procedure 54 and “the

district court extends the time to appeal under Rule 58,” Fed. R. App. P.

4(a)(4)(A)(iii), or (2) a party timely files a motion to alter or amend the judgment

under Federal Rule of Civil Procedure 59. Fed. R. App. P. 4(a)(4)(A)(iv); see also

Wikol ex rel. Wikol v. Birmingham Pub. Schs. Bd. of Educ., 360 F.3d 604, 608 (6th

Cir. 2004) (noting that “when a timely motion for attorney fees is filed under Rule

54, and the district court exercises its discretion under Rule 4(a)(4)(A) to extend

the time for filing a notice of appeal, the motion for attorney fees is given the same

effect as a Rule 59 motion to amend or alter the judgment, which, pursuant to Rule

4(a)(4)(A), automatically resets the time to file a notice of appeal until the newly

characterized Rule 59 motion, formerly a Rule 54 motion for attorney fees, is

disposed of”). Thus, “[n]ormally, a timely filed Rule 59(e) motion tolls the thirtyday period [under Federal Rule of Appellate Procedure 4(a)(1)] until entry of an

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8

order disposing of the motion.” Utah Women’s Clinic, 75 F.3d at 566–67.

It is undisputed that the district court did not exercise its discretion to extend

the time for filing a notice of appeal, although it viewed Judge Yost’s motion as

being brought under Rule 54(d). See Fed. R. App. P. 4(a)(4)(A)(iii). Judge Yost’s

notice of appeal of April 14, 2009, was filed over four months after the entry of

judgment—well beyond the thirty-day window provided by Rule 4. Therefore,

Judge Yost’s notice of appeal was untimely unless his “Motion to Alter or Amend

Judgment” can be construed, in substance as well as in form, as being brought

under Rule 59(e). In that case, the time for appeal would have been tolled.

“In determining whether a motion is brought under Rule 59, we look beyond

the form of the motion to the substance of the relief requested.” Hannon v.

Maschner, 981 F.2d 1142, 1144 n.2 (10th Cir. 1992). Where the motion requests a

substantive change in the district court’s judgment or otherwise questions its

substantive correctness, the motion is a Rule 59 motion, regardless of its label. See

id.; Cooper v. Singer, 689 F.2d 929, 930 (10th Cir. 1982).

As we previously have recognized, see Utah Women’s Clinic, 75 F.3d at 567,

the Supreme Court has announced “a uniform rule” that a decision on the merits is

final notwithstanding an unresolved issue of attorney’s fees because “a request for

attorney’s fees . . . raises legal issues collateral to and separate from the decision

on the merits.” Budinich, 486 U.S. at 200 (internal quotation marks omitted); see

id. at 199–203. The Court adopted this “bright-line rule” because “[s]uch an award

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9

[of attorney’s fees] does not remedy the injury giving rise to the action, and indeed

is often available to the party defending against the action.” Id. at 200; see also

White v. N.H. Dep’t of Employment Sec., 455 U.S. 445, 451 (1982) (holding that

Rule 59(e) does not apply to requests for attorney’s fees; a motion for attorney’s

fees “raises legal issues collateral to the main cause of action–issues to which Rule

59(e) was never intended to apply” because Rule 59(e) applies to the

“reconsideration of matters properly encompassed in a decision on the merits”).

In Utah Women’s Clinic, we addressed whether a Rule 59(e) motion that

sought to delete only an award of attorney’s fees and costs from the judgment

tolled the time in which an appeal could be taken from the merits. 75 F.3d at 567. 

We held that it did not. Id. Although the plaintiffs’ motion in Utah Women’s

Clinic “questioned the correctness” of the judgment “insofar as attorney’s fees are

concerned . . . . that d[id] not change the fact that costs and attorney’s fees

normally are collateral to the merits judgment, particularly when the judgment

contemplates significant further proceedings concerning costs and attorney’s fees.” 

Id. We explained that the orders regarding costs and attorney’s fees necessarily

were not final because “they established fee liability, but not the fee amount. 

Without question, further proceedings on the attorney’s fees and costs were

inevitable, if only to quantify them.” Id. at 568 (citation omitted).

Judge Yost’s “Motion to Alter or Amend Judgment” did not challenge the

district court’s judgment on its merits, but only challenged the court’s denial of

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6 We reject Judge Yost’s contention that we are bound to follow the

Fifth Circuit’s decision in Ramsey v. Colonial Life Insurance Co., 12 F.3d 472

(5th Cir. 1994). In that case, the Fifth Circuit held that a motion for

reconsideration of a final judgment that included a denial of attorney’s fees tolled

the time period for filing a notice of appeal. Id. at 478. The Ramsey court

construed plaintiff’s motion—not as an original request for fees—but rather as a

motion for reconsideration that “happened to focus on the question of attorney’s

fees.” Id. at 476–77. Judge Yost argues that we previously adopted the Ramsey

rule in Utah Women’s Clinic insofar as it applied to judgments that denied fees. 

We disagree.

In Utah Women’s Clinic, we simply distinguished Ramsey on its facts,

explaining that “[w]e d[id] not think Ramsey was meant to apply where the Rule

59(e) motion is directed to the merits judgment awarding both attorney’s fees and

costs which will be quantified at some future date,” 75 F.3d at 568—viz., Ramsey

was not intended to apply to the kind of circumstances that we confronted in Utah

Women’s Clinic. We did not have occasion in Utah Women’s Clinic to engage in

significant analysis concerning, much less to render a holding about, what legal

rule should control in a situation (such as the one here) where the alleged tolling

motion was filed in response to a denial of an award of attorney’s fees. In

particular, we had no occasion—nor reason—to embrace the rule of Ramsey. To

the extent that the language of Utah Women’s Clinic could be read as doing so,

that language would be dicta. See, e.g., Tuttle v. United States (In re Tuttle), 291

F.3d 1238, 1242 (10th Cir. 2002) (“[D]icta are statements and comments in an

opinion concerning some rule of law or legal proposition not necessarily involved

nor essential to determination of the case at hand.” (internal quotation marks

(continued...)

10

fees. We therefore conclude that the motion concerned only a collateral

issue—attorney’s fees—and was properly construed as a motion brought pursuant

to Rule 54(d) rather than Rule 59(e). Our holding in Utah Women’s Clinic is not

limited by its logic nor its terms to motions challenging orders granting attorney’s

fees, that ordinarily would contemplate further proceedings. In particular, Utah

Women’s Clinic applies equally to motions challenging orders denying attorney’s

fees, as here, that do not necessarily call for further proceedings.6

 If we were to

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6

(...continued)

omitted)); see also Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57

Stan. L. Rev. 953, 1065 (2005) (“A holding consists of those propositions along

the chosen decisional path or paths of reasoning that (1) are actually decided, (2)

are based upon the facts of the case, and (3) lead to the judgment. If not a

holding, a proposition stated in a case counts as dicta. (emphasis added)). And,

consequently, we would not be bound by such language. See Bates v. Dep’t of

Corr., 81 F.3d 1008, 1011 (10th Cir. 1996) (“[A] panel of this Court is bound by

a holding of a prior panel of this Court but is not bound by a prior panel’s

dicta.”).

Moreover, in a case quite similar to this one, the Fifth Circuit discarded the

rule of Ramsey, finding it to be abrogated by revisions to the federal rules. See

Moody Nat’l Bank of Galveston v. GE Life & Annuity Assurance Co., 383 F.3d

249, 251–53, 253 n.5 (5th Cir. 2004) (noting that Ramsey was abrogated by the

1993 amendment to Rule 4 providing that a motion for attorney’s fees could toll

the time to file a notice of appeal if the district court extends the time to appeal

under Rule 58). In Moody, the alleged tolling motion challenged the district

court’s sua sponte denial of costs in its judgment, instead of attorney’s fees as

here. Id. at 250. However, contrary to Judge Yost’s contention, Moody’s holding

does not appear to be limited to the context of costs. The Moody court generally

noted that “[t]he holding and reasoning of Ramsey is arguably in tension” with

Budinich, id. at 252, and concluded its analysis of the effect of the rules revisions

by stating that “it is clear to us that any post-judgment motion addressing costs or

attorney’s fees must be considered a collateral issue even when costs or attorney’s

fees are included in a final judgment.” Id. at 253 (emphasis added). Given this

development, any endorsement of Ramsey in dicta by Utah Women’s Clinic would

be open to serious question, at the very least.

11

hold otherwise, disputes over the collateral issue of attorney’s fees would delay

appeals of the merits and contravene “the uniform rule” in Budinich. See Budinich,

486 U.S. at 202–03; Utah Women’s Clinic, Inc., 75 F.3d at 568–69 (“Regardless of

which side prevails, civil rights actions invariably spawn disputes over attorney’s

fees; these disputes should not delay the appeal of the merits.”).

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12

CONCLUSION

Because we lack jurisdiction to hear the merits of this appeal for the reasons

discussed above, the appeal is DISMISSED.

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