     Case: 09-63      Document: 00511059844           Page: 1     Date Filed: 03/23/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                             March 23, 2010

                                       No. 09-63                         Charles R. Fulbruge III
                                    Summary Calendar                             Clerk



JAMES D. HARPER, individually and on behalf of himself and all others
similarly situated,

                                                    Plaintiff–Petitioner
v.

AMERICAN AIRLINES, INC.,

                                                    Defendant–Respondent




                               Petition for Leave to Appeal
                                under Fed. R. Civ. P. 23(f)


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       James D. Harper petitions under Federal Rule of Civil Procedure 23(f) and
Federal Rule of Appellate Procedure 5 for permission to appeal the Northern
District of Texas’s denial of his motion for class certification (the “Motion”).1


       *
         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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
       1
         The district court denied Harper’s motion to declare the Motion timely and granted
American Airlines, Inc.’s (“AA”) motion to strike the Motion. AA argues that the district
court’s order was not an “order granting or denying class-action certification” under Rule 23(f).
Because Harper’s petition was untimely, we do not reach this argument.
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                                          No. 09-63

Because Harper filed his petition after Rule 23(f)’s fourteen day deadline passed,
we dismiss.
       Rule 23(f) provides that we may permit an appeal only “if a petition for
permission to appeal is filed with the circuit clerk within 14 days after the order
is entered.” When calculating the deadline, we must “count every day, including
intermediate Saturdays, Sundays, and legal holidays.”                      F ED. R. C IV. P.
6(a)(1)(B).2 The district court entered its order on December 16, 2009 and
Harper’s petition was filed with the circuit clerk on December 31, 2009.
Therefore, Harper’s petition was untimely.
       We have previously held that Rule 23(f)’s deadline for filing a petition to
permit appeal is jurisdictional. McNamara v. Felderhof, 410 F.3d 277, 279–80
(5th Cir. 2005).      As noted by other circuits, however, the Supreme Court’s
decision in Eberhart v. United States, 546 U.S. 12 (2005) “casts doubt on the
notion that the timeliness of notices of appeal generally is jurisdictional.”
Carpenter v. Boeing, 456 F.3d 1183, 1190 n.1 (10th Cir. 2006) (citations omitted);
see also Coco v. Incorporated Village of Belle Terre, New York, 448 F.3d 490,




       2
        Rules 23(f) and 6(a)(1)(B) were amended effective December 1, 2009 to provide for a
fourteen day deadline including Saturdays, Sundays, and legal holidays. The old rules
imposed a ten day deadline, excluding Saturdays, Sundays, and legal holidays. Because
December 25, 2009 was a legal holiday, the deadline would have been December 31, 2009
under the old rules. Harper argues that because the Supreme Court granted discretion,
pursuant to 28 U.S.C. § 2074(a), for courts to apply the new rules to pending cases as “just and
practicable,” that we should apply the old rules to his case. However, his argument is not
persuasive. A simple change in the calculation of an appellate deadline is not a rule for which
we must provide a grace period for litigants to adjust, and the new rules were in place when
the district court entered its order on December 16, 2009. Therefore, it is “just and
practicable” to apply the new rules. See United Indus., Inc. v. Simon-Hartley, Ltd., 91 F.3d
762, 766 n.8 (5th Cir. 1996) (finding application of new rules just and practicable where there
was no legitimate reason for applying the old rules).

                                               2
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                                    No. 09-63

491–92 (2d Cir. 2006) (per curiam) (discussing Eberhart’s effect on whether the
timeliness of a petition under Rule 23(f) is jurisdictional).
      However, it is abundantly clear that whether or not the timeliness
requirement is jurisdictional, it is “strict and mandatory.” Gutierrez v. Johnson
& Johnson, 523 F.3d 187, 192 (3d Cir. 2008) (citing Jenkins v. BellSouth Corp.,
491 F.3d 1288, 1290 (11th Cir. 2007)); see also Coco, 448 F.3d at 491–92 (finding
that if Rule 23(f) “is a claim-processing rule, it is quite clearly an ‘inflexible
one’”). We cannot alter the rules simply because Harper missed the deadline by
one day or did not realize that the new rules had taken effect. Accordingly, we
dismiss Harper’s petition.
      DISMISSED.




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