Yost v. Stout

• Decision Date: 08 June 2010
• Docket Number: No. 09-3099.,09-3099.
• Citation: 607 F.3d 1239
• Parties: 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.
• Court: U.S. Court of Appeals — Tenth Circuit

607 F.3d 1239

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.

United States Court of Appeals Tenth Circuit.

June 8, 2010.

Submitted on the briefs: ^* Austin K. Vincent, Topeka, KS; James Bopp, Jr., Josiah Neeley, and Anita Y. Woudenberg, of Bopp, Coleson & Bostrom, Terre Haute, IN, for Plaintiff-Appellant.

Stephen O. Phillips, Assistant Attorney General, Topeka, KS; George T. Patton, Jr., and Marisol Sanchez, of Bose McKinney & Evans LLP, Indianapolis, IN, 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.

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 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 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 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.

DISCUSSION

A timely-filed notice of appeal is “mandatory and jurisdictional.” Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203, 108 S.Ct. 1717, 100 L.Ed.2d 178 (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 thirty-day period [under Federal Rule of Appellate Procedure 4(a)(1) ] until entry of an 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, 108 S.Ct. 1717 (internal quotation marks omitted); see id. at 199-203, 108 S.Ct. 1717. The Court adopted this “bright-line rule” because “[s]uch an award [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, 108 S.Ct. 1717; see also White v. N.H. Dep't of Employment Sec., 455 U.S. 445, 451, 102 S.Ct. 1162, 71 L.Ed.2d 325 (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 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...