REVISED SEPTEMBER 24, 2002
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 01-40609
In The Matter Of: TRANSTEXAS GAS CORPORATION; TRANSAMERICAN ENERGY; TRANSAMERICAN REFINING CORPORATION
Debtors
TEXAS COMPTROLLER OF PUBLIC ACCOUNTS; THE TEXAS WORKFORCE COMMISSION
Appellants
v.
TRANSTEXAS GAS CORPORATION
Appellee
Appeal from the United States District Court for the Southern District of Texas
August 22, 2002 Before KING, Chief Judge, and REAVLEY and WIENER, Circuit Judges.
KING, Chief Judge:
Appellants the Texas Comptroller of Public Accounts and the
Texas Workforce Commission appeal the district court’s judgment
affirming a postjudgment order entered by the bankruptcy court
setting out the interest rate applicable to payments due the
Appellants under Section 3.02(b) of Appellee Transtexas Gas
Corporation’s Chapter 11 reorganization plan. Because we find
1 that the bankruptcy court lacked jurisdiction to enter this
order, we VACATE the judgment of the district court and REMAND
with instructions that the district court VACATE the bankruptcy
court’s postjudgment order.
I. Factual and Procedural Background
We summarize only the factual and procedural information
relevant to our disposition of this case. On February 7, 2000,
the United States Bankruptcy Court for the Southern District of
Texas entered an order (“the confirmation order”) confirming
Appellee Transtexas Gas Corporation’s (“Transtexas”) Second
Amended Modified and Restated Plan of Reorganization (“the
reorganization plan”) under Chapter 11 of the United States
Bankruptcy Code. See 11 U.S.C. §§ 1101-1174 (2000). The
confirmation order provided, inter alia, that a ten percent
interest rate would apply to any payments due to Appellants the
Texas Comptroller of Public Accounts and the Texas Workforce
Commission (collectively, “the state taxing authorities”) under
Section 3.02(b) of the reorganization plan. The state taxing
authorities, who had previously objected to the reorganization
plan during the approval process, filed a notice of appeal in the
bankruptcy court on February 8, 2000, indicating their intent to
appeal the confirmation order to the United States District Court
for the Southern District of Texas. Pursuant to Federal Rule of
Bankruptcy Procedure 8006, the state taxing authorities also
2 filed a statement of the issues to be presented on appeal. See
FED. R. BANKR. P. 8006 (“Within ten days after filing the notice of
appeal . . . the appellant shall file with the clerk and serve on
appellee a designation of the items to be included in the record
on appeal and a statement of the issues to be presented.”). This
statement indicated that the issue on appeal was: “Whether the
bankruptcy court erred in setting a 10% interest rate for the
appellants’ unsecured priority tax claims.”
On February 16, 2000, the bankruptcy court entered, sua
sponte, a “Supplemental Order Regarding Confirmation of Debtor’s
Second Amended, Modified, and Restated Plan of Reorganization”
(the “first supplemental order”). This postjudgment order did
not invoke the authority of any particular provision of the
Federal Rules of Bankruptcy Procedure or the Federal Rules of
Civil Procedure. The order corrected one error in the
reorganization plan (replacing the word “two-thirds” in paragraph
eleven of the order with the word “one-third”) and reiterated the
interest rate applicable to the state taxing authorities’ claims,
stating: “If and to the extent that the Priority Tax Claims of
the Texas Comptroller are [a]llowed, the interest rate applicable
to the payments to the Texas Comptroller provided for in Section
3.02(b) of the Plan shall be ten percent (10%) per annum, or such
other rate that is determined upon final appeal.” The text of
the order clarified that it was “a Final Order . . . subject to
immediate appeal.”
3 Also on February 16, 2000, Transtexas filed an “Emergency
Motion for Entry of Order Determining Interest Rate Applicable to
Priority Tax Claims Asserted by Texas Comptroller of Public
Accounts and Texas Workforce Commission” seeking “entry of a
separate order from the Order Confirming the Plan which orders
that, to the extent that the Priority Tax Claims of the Texas
Comptroller are [a]llowed, the interest rate applicable to the
payments to the Texas Comptroller provided for in Section 3.02(b)
of the Plan shall be ten percent (10%) per annum.” This motion
did not invoke a particular provision of the Federal Rules of
Bankruptcy Procedure or the Federal Rules of Civil Procedure.
On February 17, 2000, the bankruptcy court conducted a
telephone hearing to consider Transtexas’s motion. The next day,
on February 18, 2000, the bankruptcy court issued an “Order
Determining Interest Rate Applicable to Priority Tax Claims
Asserted by Texas Comptroller of Public Accounts and Texas
Workforce Commission” (the “second supplemental order”). This
postjudgment order, which also did not invoke the authority of
any particular provision of the Federal Rules of Bankruptcy
Procedure or the Federal Rules of Civil Procedure, stated:
Upon record of the Confirmation Hearing, including the objection to confirmation of the Plan filed by the Texas Comptroller of Public Accounts and the Texas Workforce Commission (collectively, “Texas Comptroller”) the Court has determined that payment of Priority Tax Claims asserted by the Texas Comptroller, to the extent such claims are [a]llowed, under the Plan is ten
4 percent (10%) per annum. Accordingly, the Court hereby ORDERS . . . [i]f and to the extent that the Priority Tax Claims of the Texas Comptroller are [a]llowed, the interest rate applicable to the payments to the Texas Comptroller provided for in Section 3.02(b) of the Plan shall be ten percent (10%) per annum.
Like the first supplemental order, the second supplemental order
was designated as “a Final Order . . . subject to immediate
appeal.”
On February 28, 2000, the state taxing authorities filed two
separate notices of appeal from the first and second supplemental
orders. In the statements of issues accompanying these notices,
the state taxing authorities described the issues on appeal as
follows:
1. Whether a bankruptcy court, at the request of a debtor and a lender, may deny creditors that have already filed a notice of appeal the right to appeal a confirmation order by entering a “supplemental order” that makes no substantive change in a ruling contained in the confirmation order. 2. To the extent not decided in the Comptroller’s and TWC’s still-pending appeal of the confirmation order, w[h]ether the bankruptcy court erred in setting a 10.0% annual interest rate for unsecured priority tax claims under 11 U.S.C. § 1129(a)(9)(C), when the reorganized Debtor will be paying 13.25% to 15.0% interest on fully-secured loans of similar duration obtained through the commercial loan market.
After these appeals were noticed, Transtexas filed a motion to
dismiss the state taxing authorities’ appeal of the confirmation
5 order and the first supplemental order, arguing that these
appeals were moot in light of the bankruptcy court’s subsequent
entry of the second supplemental order. Transtexas thus took the
position that the second supplemental order (i.e., the February
18, 2000 order) was the appropriate order for the district court
to consider on appeal. The state taxing authorities filed a
response to this motion and filed a separate motion seeking to
consolidate their appeals of the confirmation order, the first
supplemental order, and the second supplemental order. The
district court issued an order granting the state taxing
authorities’ motion to consolidate on March 22, 2000. The court
did not rule on Transtexas’s motion to dismiss in this order.
The parties subsequently briefed the merits of the interest
rate dispute to the district court. On June 26, 2000, the
district court entered an order (“the remand order”) remanding
the case to the bankruptcy court. The district court noted that
it was unclear from the record whether the bankruptcy court
arrived at the ten percent interest rate by considering the
appropriate factors dictated by this court’s decision in
Mississippi State Tax Commission v. Lambert (In re Lambert), 194
F.3d 679 (5th Cir. 1999), and instructed the bankruptcy court to
make further findings of fact and conclusions of law regarding
the market rate of interest applicable to the state taxing
authorities’ priority tax claims, including, but not limited to:
(1) the rate of interest that the debtor would pay to borrow a
6 similar amount on the commercial market; (2) the quality of the
debtor’s security; and (3) the subsequent risk of default by the
debtor.
In this remand order, the district court also ruled on
Transtexas’s motion to dismiss the state taxing authorities’
appeals of the confirmation order and the first supplemental
order. The court granted this motion in part, stating:
From the record, it appears that the Bankruptcy Court entered the separate order so that its entire order confirming the plan would not be disturbed on appeal, but rather only the portion dealing with the interest rate. Appellants admit that the sole issue raised by their appeal is the setting of the interest rate by the Bankruptcy Court. . . . The Court therefore concludes that Appellants’ first two appeals are moot. Accordingly, the Court GRANTS IN PART Appellants’ Motion to Dismiss.
The district court did not further explain the rationale
underlying its determination that the state taxing authorities’
first two appeals were “moot.” The state taxing authorities did
not immediately attempt to appeal this remand order.
The bankruptcy court entered findings of fact and
conclusions of law in accordance with the district court’s remand
order on January 26, 2001. As characterized by the district
court, these findings did not modify the bankruptcy court’s
original order (i.e., the second supplemental order). Rather,
the bankruptcy court’s January 26, 2001 findings “merely
supplement[ed] the order with new findings of fact and
7 conclusions of law.” The district court ruled on the merits of
the interest rate dispute on May 23, 2001, affirming the
bankruptcy court’s second supplemental order (i.e., the February
18 order reiterating that the interest rate applicable to the
state taxing authorities’ Priority Tax Claims was ten percent).
The state taxing authorities appealed this judgment on the
merits to this court. They did not indicate any intent
simultaneously to appeal the district court’s remand order
dismissing their appeals of the confirmation order and the first
supplemental order. Indeed, in their statement of the issues on
appeal filed pursuant to Federal Rule of Civil Procedure 6(b),
the state taxing authorities stated that the sole issue presented
was “whether the Bankruptcy Court, in confirming a Chapter 11
plan, erred in setting a 10.0% annual interest rate for unsecured
priority tax claims under 11 U.S.C. § 129(a)(9)(C) when the
reorganized Debtor will be paying 13.25% to 15% on fully-secured
loans of similar duration obtained through the commercial loan
market.” Similarly, the state taxing authorities did not argue
in their briefing that the district court’s dismissal of their
first two appeals was improper.
The bankruptcy court’s rather unusual action in entering two
supplemental orders that essentially reiterate a provision of the
confirmation order has created a myriad of jurisdictional
problems and procedural complexities in this case. When the
resulting procedural web is untangled, we find that we are –
8 unfortunately – precluded from addressing the merits of the
important issues presented in this case because the bankruptcy
court lacked jurisdiction to enter the February 18, 2000 order
that is before us on this appeal.
“This court necessarily has the inherent jurisdiction to
determine its own jurisdiction.” Scherbatskoy v. Halliburton
Co., 125 F.3d 288, 290 (5th Cir. 1997). Similarly, this court
has inherent jurisdiction to examine the jurisdiction of district
courts within this circuit. Id. at 291. We “conduct[] a de novo
review to determine whether a lower court had subject matter
jurisdiction to entertain a case.” United States Abatement Corp.
v. Mobil Exploration & Producing U.S., Inc. (In re United States
Abatement Corp.), 39 F.3d 563, 566 (5th Cir. 1994).
II. What issues are properly before this court?
The state taxing authorities take the position that the
district court’s March 22, 2000 order consolidated their appeals
of all three of the bankruptcy court’s orders (i.e., the original
confirmation order and the first and second supplemental orders)
into a single appeal addressing all three orders. Thus,
according to the taxing authorities, the district court’s May 23,
2001 final judgment actually addressed all three of these orders,
and all three of the orders are properly before this court.
While the state taxing authorities acknowledge that the district
court dismissed their appeals of the confirmation order and the
9 first supplemental order as “moot” in its June 26, 2000 remand
order, they maintain that “the declaration of the first two
orders as ‘moot’ merely reflected the fact that a single,
consolidated appeal was now pending.” They argue that this is
the only appropriate reading of this portion of the district
court’s remand order because “[n]o argument has ever been made
that the interest rate issue was ‘moot’ in the substantive sense
of no longer being a live, justiciable issue.” Thus, according
to the state taxing authorities, the portion of the district
court’s remand order granting Transtexas’s motion to dismiss the
taxing authorities’ appeals of the bankruptcy court’s first two
orders had no practical effect because there are no longer three
separate appeals. They maintain that, because the district court
consolidated the three appeals for all purposes, the three
appeals have merged into a single appeal, eliminating any
jurisdictional and procedural problems caused by the bankruptcy
court’s entry of three separate orders.
The state taxing authorities’ position misconstrues the
nature and impact of consolidation. As the Supreme Court has
recognized on numerous occasions, consolidation “is permitted as
a matter of convenience and economy in administration, but does
not merge the suits into a single cause.” Johnson v. Manhattan
Ry. Co., 289 U.S. 479, 496-97 (1933). Consolidated actions
retain their separate character. Id.; accord McKenzie v. United
States, 678 F.2d 571, 574 (5th Cir. 1982). Concededly, this
10 court has recognized at least one context in which consolidated
actions are treated as a single action. In Ringwald v. Harris,
675 F.2d 768 (5th Cir. 1982), we held that a proper consolidation
could “cause otherwise separate actions to thenceforth be treated
as a single judicial unit for purposes of [Federal] Rule [of
Civil Procedure] 54(b) when the consolidation is clearly
unlimited and the actions could originally have been brought as a
single unit.” Id. at 771. Thus, we determined that a summary
judgment order disposing of the claims in only one of the
consolidated actions at issue in Ringwald was not a final order
subject to immediate appeal because all the claims in the
consolidated case had not been adjudicated. Such an order was
immediately appealable only if the trial court entered an
appropriate certification pursuant to Rule 54(b). Id.; accord
Road Sprinkler Fitters Local Union v. Cont’l Sprinkler Co., 967
F.2d 145, 151-52 (5th Cir. 1992). A number of our sister
circuits have similarly held that consolidated cases should
(either as a general rule or subject to a case-by-case analysis)
be treated as a single unit for the purposes of Rule 54(b)
finality determinations. See, e.g., Trinity Broad. Corp. v.
Eller, 827 F.2d 673, 675 (10th Cir. 1987); Huene v. United
States, 743 F.2d 703, 704-05 (9th Cir. 1984); Ivanov-McPhee v.
Wash. Nat’l Ins. Co., 719 F.2d 927, 930 (7th Cir. 1983).
Moreover, at least one circuit has determined that consolidated
cases should be treated as a single case for res judicata
11 purposes. See Bay State HMO Mgmt. Inc. v. Tingley Sys., Inc.,
181 F.3d 174, 182 (1st Cir. 1999).
However, neither the finality of the bankruptcy court’s
multiple orders, nor their res judicata effect is at issue in the
instant case. Instead, the state taxing authorities’ suggestion
that the appeal at bar encompasses all three orders (despite the
district court’s dismissal of the appeals of the first two
orders) effectively argues that the district court’s
consolidation of the state taxing authorities’ appeals of the
bankruptcy court’s three orders somehow merged the bankruptcy
court’s underlying orders that were the subject of these appeals.
We can find no authority (and, indeed, the state taxing
authorities point to no authority) supporting this unusual
proposition. Consolidated appeals of separate actions retain
their separate character to the extent that issues raised or
claims made in one of the constituent actions do not
automatically become issues or claims in all of the constituent
actions. Thus, if one of the constituent actions is dismissed or
summary judgment is granted, and this dismissal or judgment is
not appealed (after the district court has addressed the
remaining constituent actions), the dismissed claims are not at
issue in any subsequent appeal of the remaining constituent
actions.
In the case at bar, it is uncontroverted that the district
court dismissed the state taxing authorities’ appeals of the
12 February 7, 2000 confirmation order and the February 16, 2000
supplemental order (i.e., the first supplemental order). This
court is as mystified as the parties as to why the district court
determined that these first two appeals were “moot,” but this
determination is not before this court. The state taxing
authorities did not appeal to this court the district court’s
dismissal of its first two appeals. While it is true that,
pursuant to our holding in Ringwald, the state taxing authorities
could not have immediately appealed the remand order in which
these dismissals were announced (absent a Rule 54(b)
certification by the district court),1 the state taxing
authorities’ subsequent appeal of the district court’s May 23,
2001 judgment did not purport to appeal the portion of the June
26, 2000 remand order dismissing the appeals of the confirmation
order and the first supplemental order. Accordingly, the orders
that are the subject of these dismissed actions are not properly
before this court. The instant appeal addresses only the
district court’s May 23, 2001 judgment affirming the bankruptcy
court’s February 18, 2000 order (i.e., the second supplemental
1 Indeed, even if there was no consolidation involved, the district court’s remand order would not have been immediately appealable. “[W]hen a district court sitting as a court of appeals in bankruptcy remands a case to the bankruptcy court for significant further proceedings, the remand order is not ‘final’ and therefore is not appealable under § 158(d).” Aegis Specialty Mktg., Inc. v. Ferlita (In re Aegis Specialty Mktg., Inc. of Ala.), 68 F.3d 919, 921 (5th Cir. 1995) (quoting Conroe Office Bldg, Ltd. v. Nichols (In re Nichols), 21 F.3d 690, 692 (5th Cir. 1994) (internal quotations omitted)).
13 order). However, as noted above, we are precluded from reviewing
the merits of this judgment.
III. Did the Bankruptcy Court Have Jurisdiction to Enter the Second Supplemental Order?
It is a fundamental tenet of federal civil procedure that –
subject to certain, defined exceptions – the filing of a notice
of appeal from the final judgment of a trial court divests the
trial court of jurisdiction and confers jurisdiction upon the
appellate court. See, e.g., Griggs v. Provident Consumer Disc.
Co., 459 U.S. 56, 58 (1982) (“The filing of a notice of appeal is
an event of jurisdictional significance--it confers jurisdiction
on the court of appeals and divests the district court of its
control over those aspects of the case involved in the appeal.”).
This rule applies with equal force to bankruptcy cases. See In
re Statistical Tabulating Corp., Inc., 60 F.3d 1286, 1289 (7th
Cir. 1995). In the instant case, the bankruptcy court’s February
7, 2000 confirmation order was a final order. Thus, the state
taxing authorities’ February 8, 2000 notice of appeal of the
confirmation order divested the bankruptcy court of jurisdiction
over the case and placed jurisdiction in the appellate court
(i.e., the district court). Unless Transtexas’s February 16,
2000 motion falls within the class of postjudgment motions that
(when timely filed) will divest an appellate court of
jurisdiction and return jurisdiction to the trial court, the
bankruptcy court had no jurisdiction to enter the second
14 supplemental order and the district court erred in affirming this
order on the merits.
Federal Rule of Bankruptcy Procedure 8002(b) (an adaption of
Federal Rule of Appellate Procedure 4(a)(4)) addresses the effect
of postjudgment motions on notices of appeal. That rule states,
in pertinent part:
If any party makes a timely motion of a type specified immediately below, the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding. This provision applies to a timely motion: (1) to amend or make additional findings of fact under Rule 7052, whether or not granting the motion would alter the judgment; (2) to alter or amend the judgment under Rule 9023; (3) for a new trial under Rule 9023; or (4) for relief under Rule 9024 if the motion is filed no later than 10 days after the entry of judgment. A notice of appeal filed after announcement or entry of the judgment, order, or decree but before disposition of any of the above motions is ineffective to appeal from the judgment, order, or decree, or part thereof, specified in the notice of appeal, until the entry of the order disposing of the last such motion outstanding. . . .
FED. R. BANKR. P. 8002(b). Thus, Bankruptcy Rule 8002 dictates
that a number of postjudgment motions will render the underlying
judgment nonfinal, both when filed before an appeal is taken –
thus tolling the time for taking an appeal – and when filed after
the notice of appeal – thus divesting the appellate court of
jurisdiction and rendering the previously-filed notice of appeal
“dormant” until the postjudgment motion is adjudicated, see Burt
v. Ware, 14 F.3d 256, 258 (5th Cir. 1994). If Transtexas’s
February 16, 2000 motion is properly construed as one of the
15 motions referenced in Bankruptcy Rule 8002, then the bankruptcy
court had jurisdiction to enter the second supplemental order on
February 18, 2000, regardless of the state taxing authorities’
February 8, 2000 notice of appeal.
At the bankruptcy court’s February 17, 2000 hearing to
consider Transtexas’s February 16 motion seeking entry of a
separate order reiterating the interest rate applicable to the
state taxing authorities’ priority tax claims, the state taxing
authorities argued that the bankruptcy court had no jurisdiction
to enter the requested postjudgment order because Transtexas’s
motion could not properly be construed as any of the types of
motions that would divest an appellate court of jurisdiction.
The state taxing authorities specifically addressed whether
Transtexas’s motion could properly be construed as a Rule 59(e)
(Bankruptcy Rule 9023) motion to alter or amend the judgment,
which would divest the appellate court (i.e., the district court)
of jurisdiction. The state taxing authorities initially argued
that Transtexas’s motion was not a Rule 59(e) motion because it
did not seek the type of relief provided by Rule 59(e). They
pointed out that Transtexas’s motion did not ask the bankruptcy
court to alter or amend the confirmation order but, instead,
merely asked the bankruptcy court to reiterate a provision of
that confirmation order in a separate order. The state taxing
authorities further argued that, even if Transtexas’s motion
could be construed as a motion under Rule 59(e), the motion
16 should be denied on the merits because none of the traditional
justifications for granting relief pursuant to Rule 59(e) was
applicable.
In response to the jurisdictional objections voiced by the
state taxing authorities at the February 17, 2000 hearing, the
bankruptcy court acknowledged that there “might be a procedural
problem” with granting Transtexas’s February 16 motion and
entering a second supplemental order. However, the court
apparently determined that pragmatic concerns outweighed any
jurisdictional defect. This determination was erroneous.
Certainly, the unique nature of bankruptcy proceedings,
combined with the public policy interest in promoting successful
reorganizations, often favors tolerance of greater procedural
flexibility in bankruptcy cases. Concepts of finality, for
example, are less concrete in the bankruptcy context and, thus,
principles disfavoring appeal of orders that do not dispose of an
entire case are often less rigorously adhered to in bankruptcy
cases. See, e.g., Bartee v. Tara Colony Homeowners Assoc. (In re
Bartee), 212 F.3d 277, 282-83 (5th Cir. 2000) (describing this
court’s “flexible” approach to finality in bankruptcy
proceedings); see also 16 Charles Alan Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure § 3926.2 (2d ed.
1996 & Supp. 2002) (explaining the rationale underlying the more
flexible approach to finality that is usually adopted in
bankruptcy cases). However, these principles of flexibility do
17 not permit a bankruptcy court to enter an order addressing a
postjudgment motion when the bankruptcy court lacks jurisdiction
over the case (or over the portion of the case addressed in the
postjudgment motion)2 simply because prompt disposition of the
motion might be desirable from an efficiency standpoint. Such
pragmatic concerns cannot “outweigh” a jurisdictional defect.
Unless Transtexas’s February 16, 2000 motion divested the
appellate court (i.e., the district court) of jurisdiction, the
bankruptcy court lacked jurisdiction to enter the February 18,
2000 supplemental order that is before us in this appeal. As
noted above, Transtexas’s motion did not specifically invoke any
of the Federal Rules of Civil Procedure or the Bankruptcy Rules.
Thus, it is unclear what type of postjudgment motion Transtexas
was intending to file. However, the absence of such specificity
is not dispositive. In determining how to construe a
postjudgment motion, we look beyond the form of the document and
examine its substance to determine how the motion is best
characterized. See, e.g., N. Alamo Water Supply Corp. v. City of
2 We have also repeatedly recognized that, when a notice of appeal has been filed in a bankruptcy case, the bankruptcy court retains jurisdiction to address elements of the bankruptcy proceeding that are not the subject of that appeal. See, e.g., Sullivan Cent. Plaza I, Ltd. v. BancBoston Real Estate Capital Corp. (In re Sullivan Cent. Plaza I, Ltd.), 935 F.2d 723, 727 (5th Cir. 1991). However, this caveat cannot remedy any jurisdictional defect in the instant case. The portions of the confirmation order that the state taxing authorities challenged in their February 8, 2000 notice of appeal were indisputably the same portions addressed by the bankruptcy court’s February 18, 2000 supplemental order.
18 San Juan, Tex., 90 F.3d 910, 918 (5th Cir. 1996). Among the
types of motions listed in Bankruptcy Rule 8002 (Federal Rule of
Appellate Procedure 4(a)(4)) that will toll the time for taking
an appeal or divest an appellate court of jurisdiction by
rendering “dormant” a previously-filed notice of appeal, the only
categories that might encompass Transtexas’s February 16 request
are a Rule 59(e) (Bankruptcy Rule 9023) motion to alter or amend
the judgment or a Rule 60(a) (Bankruptcy Rule 9024) motion to
correct a clerical error. However, Transtexas’s request is not
properly construed as either of these types of motions.
A Rule 59(e) motion is a motion that calls into question the
correctness of a judgment. Rule 59(e) is properly invoked “to
correct manifest errors of law or fact or to present newly
discovered evidence.” Waltman v. Int’l Paper Co., 875 F.2d 468,
473 (5th Cir. 1989) (quoting Keene Corp. v. Int’l Fid. Ins. Co.,
561 F. Supp. 656, 665 (N.D. Ill. 1982) (internal quotations
omitted)). Transtexas’s February 16 motion requesting entry of a
separate order reiterating the provision of the confirmation
order establishing the interest rate applicable to the state
taxing authorities’ priority tax claims suggests no manifest
error of law and refers to no newly-discovered evidence. This
motion seeks – at most – only a change in the form of the
judgment. Thus, the substance of Transtexas’s motion reveals
that (if this request can even be characterized as one of the
postjudgment motions recognized by the Federal Rules of Civil
19 Procedure or the Bankruptcy Rules) it is perhaps more akin to a
motion to correct a clerical error under Rule 60(a) (Bankruptcy
Rule 8002).3
There is some indication from the hearing transcript that
the bankruptcy court might have been treating Transtexas’s
February 16 motion as if it were a motion to correct a clerical
error under Rule 60(a). However, Transtexas’s motion is not a
proper Rule 60(a) motion because Transtexas does not seek the
type of relief provided for in this rule.
As this court has repeatedly indicated, Rule 60(a) provides
a specific and very limited type of relief. See, e.g., In re W.
Tex. Mktg. Corp., 12 F.3d 497, 503 (5th Cir. 1994); Am. Precision
Vibrator Co. v. Nat’l Air Vibrator Co. (In re Am. Precision
Vibrator Inc.), 863 F.2d 428, 429-30 (5th Cir. 1989). “Rule
60(a) finds application where the record makes apparent that the
court intended one thing but by merely clerical mistake or
oversight did another. Such a mistake must not be one of
judgment or even of misidentification, but merely of recitation,
of the sort that a clerk or amanuensis might commit, mechanical
in nature.” W. Tex. Mktg., 12 F.3d at 503 (quoting Dura- Wood
3 Indeed, at least one of our sister circuits has indicated that a postjudgment motion calling into question the form of a judgment, rather than its substantive correctness, is not a Rule 59(e) motion but is more properly considered as a Rule 60(a) motion. See St. Paul Fire & Marine Ins. Co. v. Cont’l Cas. Co., 684 F.2d 691, 693-94 (10th Cir. 1982), overruling on other grounds recognized in Grantham v. Ohio Cas. Co., 97 F.3d 434, 435 (1996).
20 Treating Co., Div. of Roy O. Martin Lumber Co. v. Century Forest
Indus., Inc., 694 F.2d 112, 114 (5th Cir. 1982) (internal
citations and quotations omitted in original)). In the instant
case, neither party contends that the interest rate established
in the confirmation order was the result of a clerical error or
that entry of the second supplemental order was necessary to
clarify or correct the confirmation order. Both parties agree
that the second supplemental order merely reiterated a
determination by the bankruptcy court that was already correctly
reflected in the existing confirmation order. Under these
circumstances, we cannot construe Transtexas’s February 16 motion
requesting entry of a separate order reiterating the interest
rate applicable to the state taxing authorities’ priority tax
claims as a proper Rule 60(a) motion, nor can we construe the
bankruptcy court’s second supplemental order as an order
correcting “clerical mistakes in judgments, orders, or other
parts of the record and errors therein arising from oversight or
omission” pursuant to this rule. FED. R. CIV. P. 60(a); cf. Lee
v. Joseph E. Seagram & Sons, Inc., 592 F.2d 39, 43 (2d Cir. 1979)
(reasoning that portions of a judgment or order that are clearly
accurate and intentional cannot be altered by invoking Rule
60(a)); Ferraro v. Arthur M. Rosenberg, Inc., 156 F.2d 212, 214
(2d Cir. 1946) (reasoning that when “no clerical error [i]s
shown” it “change[s] nothing to call deliberate action accurately
reflected in the record a clerical error for the purpose of
21 attempting to invoke Rule 60”).
Because Transtexas’s February 16, 2000 motion is not
properly construed as a Rule 60(a) motion seeking to correct a
clerical error, a Rule 59(e) motion seeking to alter or amend a
judgment, or any of the other motions that can divest an
appellate court of jurisdiction pursuant to Bankruptcy Rule 8002
(Federal Rule of Civil Procedure 4(a)(4)), the bankruptcy court
had no jurisdiction to enter the second supplemental order
reiterating the interest rate applicable to the state taxing
authorities’ priority tax claims. The district court thus erred
in affirming this order.
IV. Conclusion
For the foregoing reasons, we VACATE the judgment of the
district court and REMAND this action to the district court with
instructions to VACATE the second supplemental order. Each party
shall bear its own costs.