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125 F3d 858 Olaranont v. McDonnell Douglas Corporation

125 F.3d 858

Pete OLARANONT, Plaintiff-Appellant,
v.
McDONNELL DOUGLAS CORPORATION, Defendant-Appellee.

No. 96-55181.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 7, 1997.
Decided Oct. 7, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Appeal from the United States District Court for the Central District of California, No. CV-95-04187-R; Manuel L. Real, Chief Judge, Presiding.

Before BROWNING and SCHROEDER, Circuit Judges, and RESTANI, Judge.**

1

MEMORANDUM*

2

In a prior memorandum disposition on the same case, this court affirmed the district court's dismissal of Pete Olaranont's complaint with prejudice for failure to prosecute and requested supplemental briefs from both parties on the district court's award of attorney fees.

3

The court finds that it lacks jurisdiction to review the district court's fee award. Olaranont's notice of appeal, timely filed after the district court's judgment for failure to prosecute but before the determination of the fee amount, pertains only to the former issue. See Intel Corp. v. Terabyte Int'l, Inc., 6 F.3d 614, 617 (9th Cir.1993). Moreover, even if the court were to consider Olaranont's brief the functional equivalent of a notice of appeal of the fee determination, see id. at 618, the brief does not comply with the thirty day period for filing an appeal required under Fed.R.App.P. 4(a). This time period is mandatory and jurisdictional, leaving the court no discretion to review the fee award. Bird v. Reese, 875 F.2d 256, 257 (9th Cir.1989).

4

Thus, the district court's award of attorney's fees is affirmed. Appellee's request for attorney's fees on appeal under Cal. Gov't Code § 12965 is denied. The judgment of the district court is AFFIRMED.

**

The Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by designation

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by the 9th Cir.R. 36-3