IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 12, 2008
No. 07-20494
Summary Calendar Charles R. Fulbruge III
Clerk
HENDERSON R. PRYOR,
Plaintiff-Appellant,
v.
ALAN M. WOLFE; JOSEPH W. JOHNSON,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CV-150
Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Henderson Pryor appeals the dismissal of his employment discrimination
case and the denial of his motion to reopen the time to file an appeal. We find
that we do not have jurisdiction to review the district court’s dismissal of Pryor’s
suit because Pryor did not timely file an appeal thereof.
The district court dismissed Pryor’s case on May 3, 2006. Pryor filed a
motion to vacate that judgment, and the district court denied the motion on May
23, 2006. Pryor did not timely file a notice of appeal regarding that judgment.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-20494
Then, on October 31, 2006, Pryor filed a motion to reopen the time to file an
appeal. The district court denied Pryor’s motion on November 29, 2006 and
therefore refused to provide Pryor additional time to file a notice of appeal.
Pryor then on May 1, 2007 filed a motion to vacate the district court’s
order denying additional time to appeal. The district court denied that motion
on June 1, 2007. Pryor timely appealed the district court’s most recent order.
As the district court concluded, Pryor did not timely file a notice of appeal
of the district court’s refusal to vacate its original judgment dismissing Pryor’s
case. Pryor argues that he should have been allowed more time to file an appeal
because he never received notice of the district court’s denial of his motion to
vacate. However, the record shows that Pryor did have adequate notice of the
district court’s denial of his original motion to vacate. Pryor concedes that he
received the district court’s order denying his motion to vacate on August 30,
2006, thereby giving him notice of that order.
Under the Federal Rules of Appellate Procedure, the time to file an appeal
of an order may be reopened “if the motion is filed 180 days after the judgment
or order is entered or within 7 days after the moving party receives notice.” FED.
R. APP. P. 4(a)(6)(B). Pryor filed his untimely motion to reopen the time to file
an appeal on October 31, 2006, two months after he received notice of the order.
Pryor had seven days after receiving notice of the order on August 31, 2006 to
file a motion to reopen the time to file an appeal, yet he did not file his motion
until two months later. Therefore, the district court did not err in refusing to
grant Pryor additional time to appeal its May 23, 2006 order denying the
original motion to vacate.
Pryor’s appellate brief asks this court to evaluate the correctness of the
district court’s refusal to vacate its judgment dismissing his claims. However,
given our conclusion that Pryor did not timely appeal that judgment, we do not
have jurisdiction to address the remainder of Pryor’s arguments. “A timely
notice of appeal is mandatory and jurisdictional, and we have no power to
2
No. 07-20494
enlarge the time for filing a notice of appeal under any circumstances.” Matter
of Lacey, 114 F.3d 556, 557 (5th Cir. 1997) (internal citation omitted). Therefore,
we DISMISS Pryor’s appeal for lack of jurisdiction.
3