# United States Court of Appeals

f or the Fifth Circuit

No. 20

- 40541

Carla Frew; Charlotte Garvin, as next friend of her minor children Johnny Martinez, Brooklyn Garvin and BreAnna Garvin; Class Members; Nicole Carroll, Class Representative ; Maria Ayala, as next friend of her minor children , Christopher Arizola, Leonard Jimenez, and Joseph Veliz; Mary Jane Garza, as next friend of her minor children , Hilary Garza and Sarah Renea Gar za,
Plaintiffs

— Appellants ,

versus
Cecile Young, M.D.; John William Hellerstedt, M.D.,
Defendants

— Appellees

.

Appeal from the United States District Court for the Eastern District of Texas USDC No. 3:93

- CV

- 65

Before King, Smith, and Haynes, Circuit Judges

. Jerry E. Smith, Circuit Judge :
Plaintiffs return to this court to challeng e the district court’s deter

min a tion that, despite their status as a “prevailing party” under 42 U.S.C. § 1988, they are entitled to no fees. They appeal the court’s underlying judg

ment and its ensuing denial of their motion to reconsider that judgment. But United States Court of Appeals

Fifth Circuit 

### FILED March 26, 2021 Lyle W. Cayce Clerk Case: 20-40541 Document: 00515798380 Page: 1 Date Filed: 03/26/2021No. 20

- 40541

2 because p laintiffs failed timely to appeal the underlying judgment , we lack jurisdi ction to review it , requiring that we dismiss that portion of the appeal

. Nonetheless, the denial of the motion for reconsid er ation properly is before

us

. Although t he district court construed that motion under the incorrect Federal Rule of Civil Procedure, it nonetheless reached the proper result

. W e affirm the judgment accordingly.

I. This appeal is the latest canto in a litigation epic that has spanned nearly three decades

. T he case has wound its way through the courts , pro

duc ing six earlier opinions from this court and one from the Supreme Court

. 1 Mercifully, much of that snarled history is not relevant here

— we can skip ahead to 20 07. In 2007, the parties agreed to eleven c orrective

- a ctio n o rder s (“CAOs”) intended to bring Texas into compliance with a c onsent d ecree to which the parties had assented about a decade earlier. Frew V , 780 F.3d

at 323

– 24 . The c onsent d ecree was aimed at making improvements to Texas’s implementation of Medicaid’s Early and Periodic Screening, Diag

nosis, and Treatment program

. Id. at 323. The CAO at issue here, entitled “Check Up Reports and Plans for Lagging Counties,” required the state to gather data by cou nty regarding its provision of Medicaid services

. As it col

lected data, the state was obliged to develop plans for increasing participation in counties that “lagged” behind others.

1 Frazar v. Gilbert , 300 F.3d 530 (5th Cir. 2002) (“ Frew I ”), rev’d sub nom. Frew ex rel. Frew v. Hawkins , 540 U.S. 431 (2004) (“ Frew II ”); Frazar v. Hawkins , 376 F.3d 444 (5th Cir. 2004) (“ Frew III ”); Frazar v. Ladd , 457 F.3d 432 (5th Cir. 2006) (“ Frew IV ”); Frew v. Janek , 780 F.3d 320 (5th Cir. 2015) (“ Frew V ”); Frew v. Janek , 820 F.3d 715 (5th Cir. 2016) (“ Frew VI ”); Frew v. Traylor , 688 F. App’x 249 (5th Cir. 2017) (“ Frew VII ”) (per curiam). Case: 20-40541 Document: 00515798380 Page: 2 Date Filed: 03/26/2021No. 20

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3 The CAO included a four

- year “conference period,” at the end of which the parties were to “confer to determine what further action , if any , [ was ] required

. ” In the event th ey could not agree within ninety days of that conference , the court would step in to resolve the dispute. That’s what hap

pened here. The parties failed to agree , p laintiffs moved for further action pursuant to the L agging C ounties CAO , and d efendants filed a com peting motion to eliminate portions of that CAO. The district court denied p lain

tiffs’ motion and granted d efendants’.

Plainti ffs do not contest the resolution of those competing motions

. Instead, t he present dispute regards attorneys’ fees for the p laintiffs’ un

successful efforts related to the Lagging Counties CAO. The parties nego

tiated over the fees owed to p laintiffs’ at torneys, agreeing in part and submit

ting a joint motion for an award of uncontested fees. But they were not able to agree on fees pertaining to the attorneys’ efforts on the L agging C ounties CAO. Notwithstanding p laintiffs’ overarching “prevailing party ” status, d efendants opposed awarding fees for their attorneys’ efforts on the unsuc

cessful motions relating to the L agging C ounties CAO. The district court determined that, even though p laintiffs “were ulti

mate ly unsuccessful on their motions related” to the L agging C ounties CAO, the d efendants were required to pay the full cost of p laintiffs’ fees “in con

nection with [those] motions.” That conclusion was based on p laintiffs’ “undisputed” status as “ prevailing p arties with regard to the Consent Decree and the [CAOs].”

The district court noted that the CAO “specifically contemplate[d] that P laintiffs will seek court action , ” such as the motions regarding the L ag

ging C ounties CAO, if the parties failed to agree at conference. Thus, precluding p laintiffs’ attorneys from recovering “for work that is anticipated by the parties’ agreements would deprive P laintiffs of their victory in Case: 20-40541 Document: 00515798380 Page: 3 Date Filed: 03/26/2021No. 20

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4 procuring the [CA O ].” Defendants appealed , asserting “that because P laintiffs we re unsuc

cessful in extending the d efendants’ obligations under the lagging counties provision, they are not a ‘prevailing’ party.” Frew VII , 688 F. App’x at 254. We disagreed, holding instead that p laintiffs “had an entitlement to fees as the round of motion practice was the final step contemplated under the 2007 [CAO].” Id. at 251. Nonetheless, because “prevailing party status does not automatically entitle a party to the full amount of attorneys’ fees incurred,” we vacated and remanded because the district court failed to perform a rea

son ableness analysis p e r Hensley v. Eckerhart , 461 U.S. 424, 429 (1983)

. Frew VII , 688 F. App’x at 257

– 58. On remand, the district court went to the opposite ext reme and denied an award of any fees. Applying a two

- factor test from Hensley , the court con

cluded “that the Plaintiffs’ unsuccessful pursuit of their lagging counties motion was not related to the claims upon which they had been successful. ” It further held , without analyzing the question, that p laintiffs had failed to achieve a level of success that made the hours expended a satisfactory basis for making a fee award

. The court entered that order on April 7, 2020. Thirty days later , on May 7, 2020, Plaintiffs filed both a motion to stay the running of the time to file a notice of appeal and a motion to reconsider

. The district court granted both motions th e same day

. Roughly two months later, on July 23, the court denied p laintiffs’ motion for reconsideration. Plaintiffs filed a notice of appeal on August 13.

W e now arrive at the crux of the present appeal

— whether the district court committed reversible error when it denied all fees for the motions relating to the Lagging Counties CAO. But before we reach the merits of the fee dispute , we must determine whether we possess appellate jurisdiction to Case: 20-40541 Document: 00515798380 Page: 4 Date Filed: 03/26/2021No. 20

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5 review the underlying order

. We do not.

II. Typically, a n interim fee award “may not be immediately appealed as a final judgment” or “as a collateral order.” 10 James W. Moore

et al., Moore’s Federal Practice [ hereinafter M oore’s ] § 54.158[1][a], at 54

- 260.1 (3d ed. 2020). But w e need not concern ourselves with the par ticulars of the col lateral order doctrine

— the law of the case dictates that the interim fee award at issue here is appealable as a collateral order. Frew VII

, 688 F. App’x at 253. And “[a]n appealable collateral order is a ‘final decision’ under 28 U.S.C. § 1291 and must be appealed within the time specified by Appellate Rule 4.” 19 Moore ’s , § 202.07[1], at 202

- 47.

A notice of appeal must be filed “within 30 days after entry of t he judgment or order appealed from.” Fed. R. App. P. 4(a)(1) (A) ; 28 U.S.C. § 2107(a). Because that 30

- day requirement has statutory roots in 28 U.S.C. § 2107, it is jurisdictional

. See Bowles v. Russell , 551 U.S. 205, 209

– 13 (2007). Thus, i f an appeal i s untimely , we lack jurisdiction to entertain it. Id. The underlying judgment from which Plaintiffs appeal was entered on April 7

. Plaintiffs filed their notice of appeal on August 13, well beyond the 30

- day window. Nonetheless, certain postjudgment motions , if timely filed, toll the appellate deadline until the district court disposes of the motion. Fed. R. App. P. 4(a)(4). It is uncontested that p la intiffs moved for reconsideration on the 30th day after the judgment, falling within the deadline to appeal. Thus, if properly construed as a timely motion under Rule 4(a)(4), the 30

- day window to file a notice of appeal would have been tolled until the J uly 23 order

. Plaintiffs’ motion conceivably could be construed as one of three different motions that Rule 4 permits to toll the appellate deadline . We could Case: 20-40541 Document: 00515798380 Page: 5 Date Filed: 03/26/2021No. 20

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6 construe it as a motion (1) “for attorney’s fees under R ule 54 if the district court extends the time to appeal under Rule 58 ,” (2) “to alter or amend the judgment under Rule 59,” or (3) “for relief under Rule 60.” Rule 4 (a)

- (4) (A) (iii), (iv), (vi). Any of those motions, if filed “within the time allowed by” the applicable Rule, would toll the appe llate deadline. Rule 4 (a)(4)(A).

But , for a district court to extend the time to appeal under Rule 58, a Rule 54(d)(2) motion must “be filed no later than 14 days after the entry of judgment.” Fed. R. Civ. P. 54(d)(2) (B) (i) ; Fed. R. Civ. P

. 58(e) . A Rule 59(e) motion fares no better, because it “must be filed no later than
28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). And , sim i larly, a Rule 60 motion will toll the appellate deadline only “if the motion is filed no later than 28 days after the judgment is entered.” Rule 4 (a)

- ( 4) (A)(vi). The May 7 motion for reconsideration

— filed 30 days after the distric t court entered judgment

— was therefore not filed “within the time allowed by” any of the applicable r ules under which the motion could have been brought

. Fed. R. App. P. 4(a)(4)(A). Consequently, it failed to invoke Rule 4’s tolling provision. Irrespective of how we construe p laintiffs ’ motion, it was untimely for purposes of Rule 4

— it failed to toll the deadline to appeal the April 7 o rder. 2 Accordingly, the August 13 notice of appeal was untimely, and we lack jur is

diction to review that order. 3

2 See Hager v. Underwood , 773 F. App’x 224, 225 (5th Cir. 2019) (per curiam) (“[Appellant’s] ‘petition to reconsider’ did not extend [the time to appeal] because it was filed more than 28 days after the district court issued its judgment.”).

3 As defendants acknowledge, there is increasing momentum to treat the deadlines d escribed above as mandatory claim

- processing rules rather than jurisdictional require

ments. See Hamer v. Neighborhood Hous. Servs. of Chi. , 138 S. Ct. 13, 17

– 18 (2017); see also Escribano v. Travis C

n ty. , 947 F.3d 265, 270

– 72 (5th Cir. 2020). “Mandatory claim

processing rules are less stern” than jurisdictional requirements because “they may be Case: 20-40541 Document: 00515798380 Page: 6 Date Filed: 03/26/2021No. 20

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7 III. Dismissing the appeal of the April 7 o rder does not, however, dispose of the case in its entirety. Plaintiffs appeal both the April 7 o rder and the July
23 o rder denying their motion to reconsider. Because, as described below, there existed a procedural mechanism by which the district court properly could have entertained the motion to reconsider, and because Plaintiffs timely filed their notice of appeal as to that motion, we have appellate jur is

diction to review it. 4 We do so u nder an abuse

- of

- discretion standard. Jordan v. Maxfield & Oberton Holdings, L.L.C. , 977 F.3d 412, 419 (5th Cir. 2020).

A. Although the motion for reconsideration failed to toll the appellate deadline , it is not entirely without effect. Instead, “a court may treat an untimely Rule 59(e) motion to alter or amend the judgment as if it were a Rule 60(b) motion if the grounds asserted in support of the Rule 59(e) motion would also support Rule 60(b) relief.” 5 The district court opted not to con

strue it as such because the fee award is an interlocutory order, appealable

waived or forfeited.” Hamer , 138 S. Ct. at 17. Even still, when they are “properly in

voked,” they “must be e nforced.” Id. Because defendants raised the deadline in the dis

trict court and on appeal, it remains mandatory even if not jurisdictional. And applying those mandatory rules renders the appeal untimely, which is jurisdictional. Bowles , 551 U.S. at 211 (“ [Section] 2107 contains the type of statutory time constraints that would limit a court’s jurisdiction.”).

4 Judge Haynes recently laid the analytic framework that guides us: “Because [plain tiffs] moved for reconsideration after the 28

- day deadline an d did not file an appeal until more than thirty days after the [April 7 order, their] motion for reconsideration was a Rule 60 motion, and we lack jurisdiction over all the issues other than those pertaining to the Rule 60 motion.” United States v. Mtaza , No. 19

- 20280, 2021 U.S. App. LEXIS 6825, at *21 (5th Cir. Mar. 9, 2021) (unpublished) (Haynes, J., concurring in part and dissenting in part).

5 Halicki v. La. Casino Cruises, Inc. , 151 F.3d 465, 470 (5th Cir. 1998) (quoting 1 2 Moore ’s § 60.03[4], at 60

- 24 (3d ed. 1998)). Case: 20-40541 Document: 00515798380 Page: 7 Date Filed: 03/26/2021No. 20

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8 only under the collateral order doctrine

. Frew VII , 688 F. App’x a t 253

. According to the district court, the fact that the order is “immediately appealable does not alter its interlocutory nature , ” so it was not a “final” decision. Instead, on recon sideration, the court construed the motion as aris

ing under Rule 54(b )

. That was error

. Rule 54(b) permits a district court to “revise[] at any time” a n order that is not final

. 6 But “[a]n appealable collateral order ,” such as the one at issue here, “ is a ‘final decision’ under 28 U.S.C. § 1291 and must be appealed withi n the time specified by Appellate Rule 4 .” 19 Moore ’s , § 202.07[1],
at 202

- 47. Thus, although the interim fees award technically was an inter

locutory order, because it was an “appealable collateral order,” it was a “final decision

. ” Id. Rule 54 (b) , which applies only to orders that are “not final , ” Seidenbach , 958 F.3d at 34 6

– 4 7, i s inapplicable. 7 To adopt the district court’s reasoning to the contrary would be il log

i cal . Under that approach, t here is no limiting principle as to when p laintiffs could ask the district court to revisit the fee order, and thereby no limit as to when they could appeal it. And “[i]t will not do to permit a col lateral order appeal t o be taken at any time, perhaps years after the entry of the underlying order, by the simple device of moving to amend.” 8 That concern is particu

larly salient here, where the litigation has spanned multiple decades. Instead, “[t]he most obvious approac h would be to say that a motion to reconsider an

6 Fed. R. Civ

. P. 54(b); see also Williams v. Seidenbach , 958 F.3d 341, 346

– 47 (5th Cir. 2020) (en banc) (“[A]ny order that .

. . is not final .

. . may be revised at any time before final judgment.” (cleaned up)).

7 Plainly, an order cannot be subject to “the time specified by Appellate Rule 4,” 19 Moore ’s , § 202.07[1], at 202

- 47, and simultaneously be “revised at any time ,” Fed. R. Civ. P. 54(b) (emphasis added), by the district court.

8 15A Wright, Miller & Cooper, Federal Practice and Proce

dure: Jurisdiction and Related Matters § 3911, at 358 (2d ed. 1991). Case: 20-40541 Document: 00515798380 Page: 8 Date Filed: 03/26/2021No. 20

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9 appealable collateral order is a motion under [] Rule 59(e) to ‘alter or amend the judgment.’” Id. Thus, Rule 59 (e) was the proper procedural mechanism under which the district court ought to have considered the motion to reconsider

. And because the Rule 59 (e) motion was untimely, the district court should have treated it as a motion under Rule 60(b). 9

Bu t that error was harmless. T h e district court applied “the guiding principle s of Rule 59(e)” to resolve the motion. That r ule provides a “lower threshold” for a movant to prevail than does Rule 60(b). 10 Thus, “[p]ractical considerations .

. . persuade us not to remand” for consideration under Rule 60(b). Matter of Am. Precision Vibrator Co. , 863 F.2d 428, 432 (5th Cir. 1989). Remanding for consideration under a more “ exacting ” standard, Lavespere , 910 F.2d at 173, when plaintiffs could not prevail under an easier one , would be a waste of time and resources. 11 We opt not to req uire the parties in this

9 See Halicki , 151 F.3d at 470; Ford v. Elsbury , 32 F.3d 931, 937 n.7 (5th Cir. 1994) (“We have consistently stated .

. . that a motion [for reconsideration] .

. . will be treated as either a motion ‘to alter or amend’ under [R]ule 59(e) or a motion for ‘relief from judg

ment’ under Rule 60(b). Under which Rule the motion falls turns on the time at which the motion is served.” (quotation omitted)).

10 12 Moore’s , § 60.03[4], at 60

- 25 ( comparing Rules 59(e) and 60(b) and ex

plaining that “ Rule 60(b) relief is an ‘extraordinary remedy’” that “is granted only in ‘exceptional circumstances’”) ; accord Lavespere v. Niagra Mach. & Tool Works, Inc. , 910 F.2d 167, 173

– 74 (5th Cir. 1990) (stating that “Rule 59(e) .

. . is not controlled by the same exacting substantive requirements” as Rule 60(b), and that “Rule 59(e) is not subject to the limitations of Rule 60(b)”) , abrogated on other grounds by Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 n.14 (5th Cir. 1994) (en banc)

.

11 Although plaintiffs ’ briefs fail to assert that the motion for reconsideration was

wron gly decided , save to explain (erroneously) that their objections to the underlying order “apply with equal force to the denial of Plaintiffs motion to reconsider,” contra Browder v. Dep’t of Corr. of Ill. , 434 U.S. 257, 263 n.7 (1978) (“[A]ppeal from denia l of Rule 60(b) relief does not bring up the underlying judgment for review.”), we have reviewed the district court’s Rule 59(e) analysis. Applying the “usual deference” with which we review a Rule Case: 20-40541 Document: 00515798380 Page: 9 Date Filed: 03/26/2021No. 20

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10 long

- running dispute to entertain that charade for the sake of formalism. 12 The appeal from the April 7, 2020, order is DIS MISSED for want of appellate jurisdiction. The July 23, 2020, order is AFFIRMED.

60(b) denial, we find no reversible error

. Halicki , 151 F.3d at 471

.

12 Cf. Morgan v. Chapman , 969 F.3d 238, 248 (5th Cir. 2020) (“If adding these claims would be futile on the merits, we will not remand for efficiency’s sake.”). Case: 20-40541 Document: 00515798380 Page: 10 Date Filed: 03/26/2021