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), 

(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., 

, 290 (5th Cir. 1997).      Similarly, this court

has inherent jurisdiction to examine the jurisdiction of district

courts within this circuit.   

    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.), 

, 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., 

, 496-97 (1933).    Consolidated actions

retain their separate character.     Id.; accord McKenzie v. United

States, 

, 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,

(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.”   

   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., 

, 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, 

, 675 (10th Cir. 1987); Huene v. United

States, 

, 704-05 (9th Cir. 1984); Ivanov-McPhee v.

Wash. Nat’l Ins. Co., 

, 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.,

, 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.), 

, 921 (5th Cir. 1995) (quoting Conroe Office
Bldg, Ltd. v. Nichols (In re Nichols), 

, 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., 

, 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., 

, 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, 

, 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), 

, 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.), 

, 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., 

, 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., 

,

473 (5th Cir. 1989) (quoting Keene Corp. v. Int’l Fid. Ins. Co.,

, 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., 

, 503 (5th Cir. 1994); Am. Precision

Vibrator Co. v. Nat’l Air Vibrator Co. (In re Am. Precision

Vibrator Inc.), 

, 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. 

(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., 

, 693-94 (10th Cir. 1982), overruling on other
grounds recognized in Grantham v. Ohio Cas. Co., 

, 435
(1996).

                                 20
Treating Co., Div. of Roy O. Martin Lumber Co. v. Century Forest

Indus., Inc., 

, 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., 

, 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., 

, 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

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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.




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