IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 97-11272
Summary Calendar
____________________
JUDITHA N WAYNE,
Plaintiff-Appellant,
v.
ABILENE REGIONAL MENTAL HEALTH
AND MENTAL RETARDATION CENTER,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(1:96-CV-201)
_________________________________________________________________
June 19, 1998
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Juditha N. Wayne appeals the district
court’s denial of her motion for extension of time to file notice
of appeal. We dismiss this appeal for lack of jurisdiction due
to its untimely filing.
*
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this opinion should not be published and is not precedent except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.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1996, Juditha N. Wayne, acting pro se, filed a Title VII
employment discrimination suit against her employer, Abilene
Regional Mental Health and Mental Retardation Center (MHMR).
Wayne’s complaint alleged that she was terminated because of her
race and her office associations with a co-worker. The district
court granted Wayne’s motion to proceed in forma pauperis but
denied her motion for court-appointed legal counsel. After
discovery, MHMR filed a motion for summary judgment which the
district court granted on June 2, 1997. On July 31, 1997, Wayne
filed a motion to extend time to file notice of appeal under
Federal Rule of Appellate Procedure 4(a)(5) on the basis of
excusable neglect, which the district court denied.
Concurrent with her Rule 4(a)(5) motion, Wayne filed a
notice of appeal for the original June 2, 1997 judgment. She
addressed the notice to the “Temporary Emergency Court of Appeals
of the United States,” and the district court forwarded it to the
United States Court of Appeals for the Federal Circuit. The
Federal Circuit determined that it did not have jurisdiction to
hear a Title VII appeal and that it was not in the interest of
justice to transfer an untimely notice of appeal to the Fifth
Circuit. The Federal Circuit accordingly dismissed the appeal.
On November 4, 1997, Wayne filed a second notice of appeal with
the district court, requesting that the Fifth Circuit review the
district court’s October 3 denial of her Rule 4(a)(5) motion.
II. DISCUSSION
MHMR claims that this court lacks jurisdiction over Wayne’s
November 4 appeal because it was filed more than thirty days
after the October 3 order and is therefore untimely. Wayne does
not address this issue.
Timeliness of a civil appeal is governed by Federal Rule of
Appellate Procedure 4(a)(1), which states that notice of appeal
“must be filed with the clerk of the district court within 30
days after the date of entry of the judgment or order appealed
from.” FED. R. APP. P. 4(a)(1). Adherence to the prescribed time
limit is “mandatory and jurisdictional.” United States v.
Robinson, 361 U.S. 220, 224, 229 (1960); See also Browder v.
Director, Dep’t of Corrections, 434 U.S. 257, 264 (1978) (citing
Robinson, 361 U.S. at 229); RTC v. Northpark Joint Venture, 958
F.2d 1313, 1316 (5th Cir. 1992) (describing timely filing as a
mandatory precondition to the exercise of jurisdiction); cf.
Marts v. Hines, 117 F.3d 1504, 1513-14 (5th Cir. 1997) (Garwood,
J., dissenting) (outlining the history of Rule 4). Therefore,
compliance with the timing of a notice of appeal under Rule
4(a)(1) is crucial. See 20 JAMES WM. MOORE ET AL., MOORE’S FEDERAL
PRACTICE § 303App.01[2] (3d ed. 1998). Additionally, the Court of
Appeals has no authority to extend the time in which to file an
appeal. FED. R. APP. P. 26(b).
As stated above, the district court entered its final order
denying Wayne’s Rule 4(a)(5) motion on October 3, 1997.
Consequently, Wayne was required to submit her appeal within
thirty days after the date of the order, or no later than
November 2, 1997. However, November 2 fell on a Sunday, giving
Wayne an extra day to submit her notice of appeal, as permitted
by Federal Rule of Appellate Procedure 26(a). Wayne did not file
her appeal until Tuesday, November 4, 1997, which was a day late.
Consequently, we lack jurisdiction to rule on the merits of
Wayne’s appeal of the district court’s denial of her Rule 4(a)(5)
motion.
III. CONCLUSION
For the foregoing reasons, we DISMISS Wayne’s appeal for
lack of appellate jurisdiction.