Schneider

MEMORANDUM **

Because Schneider’s efforts in litigating the prejudgment interest and nominal damages proceedings earned him an additional recovery of $17,703.66, the district court erred in concluding that he was not a “prevailing party” in these proceedings. See Buckhannon Bd. and Care Home, Inc. v. West Virginia Dep’t of Health and Human Res., 532 U.S. 598, 603 , 121 S.Ct. 1835 , 149 L.Ed.2d 855 (2001). The district court treated Schneider’s entitlement to fees as foreclosed by our denial of his request for attorney’s fees and costs on appeal in case nos. 00-55798 and 00-56329, *116 in which he did not prevail. In doing so, the district court apparently overlooked our order in case no. 00-55709 in which, instead of denying Schneider’s motion for attorney’s fees and expenses, we referred his motion to the district court for consideration.

We reverse the order denying Schneider’s motion for fees and expenses, and remand the case to the district court for consideration of Schneider’s motion.

REVERSED AND REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

dissenting.

OSCANNLAIN, Circuit Judge.

On December 3, 2002, Louis Schneider filed a notice of appeal challenging the district court’s September 10th denial of his attorneys’ fees. Because this was well beyond the 30-day deadline established by Federal Rule of Appellate Procedure 4(a)(1)(A), I believe that we do not have jurisdiction to consider the legal merits of that judgment, and I must respectfully dissent from the majority’s conclusion to the contrary.

I

The district court’s second amended judgment, filed on September 10th, explicitly declined to award attorneys’ fees to either party — Schneider himself conceded as much in his reply brief. It is also beyond dispute that Schneider filed his one and only notice of appeal on December 3rd, 84 days later. Because 84 days clearly exceeds the applicable 30-day time-limit set forth in Rule 4, and because Schneider never sought to expand his time to appeal, we simply lack jurisdiction over that decision. Feldman v. Allstate Ins. Co., 322 F.3d 660, 665 (9th Cir.2003) (“Failure to timely file a notice of appeal necessarily results in [a] ... lack of appellate jurisdiction.”); Celr-A-Pak v. Cal. Agrie. Labor Relations Bd., 680 F.2d…