Liddell Ex Rel. Liddell v. Board of Education

No. 95-1093

Michael C. Liddell, a minor, *
by Minnie Liddell, his mother *
and next friend; Kendra *
Liddell, a minor, by Minnie *
Liddell, her mother and next *
friend; Minnie Liddell; *
Roderick D. LeGrand, a minor *
by Lois LeGrand, his mother *
and next friend; Lois LeGrand; *
Clodis Yarber, a minor, by *
Samuel Yarber, his father and *
next friend; Samuel Yarber; *
Earline Caldwell; Lillie *
Caldwell; Gwendolyn Daniels; *
National Association for the *
Advancement of Colored People; *
United States of America; City *
of St. Louis; *
*
Plaintiffs; *
*
v. *
*
Board of Education of the City *
of St. Louis; *
*
Defendant-Appellee; *
*
John P. Mahoney, President, *
Board of Education of the *
City of St. Louis; Penelope *
Alcott, a member of the Board *
of Education; Marjorie R. *
Smith, a member of the Board *
of Education; Earl E. Nance, *
Jr., a member of the Board of *
Education; Thomas F. Bugel, a *
member of the Board of Educa- *
tion; Louis P. Fister, a member *
of the Board of Education; *
Nancy L. Hagan, a member of *
the Board of Education; Earl P. *
Holt, III, a member of the *
Board of Education; Shirley M. *
Kiel, a member of the Board of *
Education; Gwendolyn A. Moore, *
a member of the Board of *
Education; Dr. Joyce M. *
Thomas, a member of the Board *
of Education; Rufus Young, Jr.; *
Julius C. Dix; David J. Mahan, *
Interim Superintendent of *
Schools; Ronald Leggett, St. *
Louis Collector of Revenue; *
*
Defendants; *
*
State of Missouri; Mel *
Carnahan, Governor of the *
State of Missouri; Jeremiah W. *
(Jay) Nixon, Attorney General; *
Bob Holden, Treasurer; Richard *
A. Hanson, Commissioner of *
Administration; Robert E. *
Bartman, Commissioner of *
Education; Missouri State *
Board of Education, and its *
members; Thomas R. Davis; *
Gary M. Cunningham; Sharon M. * Appeal from the United States
Williams; Peter F. Herschend; * District Court for the
Jacqueline D. Wellington; * Eastern District of Missouri.
Betty E. Preston; Russell V. *
Thompson; *
*
Defendants-Appellants; *
*
Special School District of *
St. Louis County; Affton Board *
of Education; Bayless Board of *
Education; Brentwood Board of *
Education; Clayton Board of *
Education; Ferguson-Florissant *
Board of Education; Hancock *
Place Board of Education; *
Hazelwood Board of Education; *
Jennings Board of Education; *
Kirkwood Board of Education; *
Ladue Board of Education; *
Lindbergh Board of Education; *
Maplewood-Richmond Heights *
Board of Education; Mehlville *
Board of Education; Normandy *
Board of Education; Parkway *
Board of Education; Pattonville *
Board of Education; Ritenour *
Board of Education; Riverview *
Gardens Board of Education; *
Rockwood Board of Education; *

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University City Board of *
Education; Valley Park Board of *
Education; Webster Groves Board *
of Education; Wellston Board of *
Education; St. Louis County; *
Buzz Westfall, County *
Executive; James Baker, *
Director of Administration, St. *
Louis County, Missouri; Robert *
H. Peterson, Collector of St. *
Louis County "Contract *
Account," St. Louis County, *
Missouri; *
*
Defendants; *
*
St. Louis Teachers' Union, *
Local 420, AFT, AFL-CIO; *
*
Intervenor. *

Submitted: November 16, 1995

Filed: January 12, 1996

Before MCMILLIAN, HEANEY, and FAGG, Circuit Judges.

HEANEY, Circuit Judge.

The State of Missouri appeals an order to reimburse the Board
of Education of the City of St. Louis (the Board) for attorneys'
fees and expenses. Prior to the order, the district court had
rejected a previous request by the Board for attorneys' fees and
expenses. That request was based on a claim that the Board was
entitled to the fees as a prevailing party. The Board appealed
that order. While the case was pending before this court, the
Board made a second request for the same fees and expenses based on
a theory that the fees were part of site acquisition costs. We
hold that the Board's notice of appeal of the first order
transferred jurisdiction of this issue from the district court to
this court. Once that appeal was filed, the district court had no

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continuing jurisdiction to entertain motions with respect to the
particular fees and expenses in question. Therefore, we vacate the
district court's second order.

BACKGROUND

In 1988, the United States District Court for the Eastern
District of Missouri authorized the construction of an
investigative learning center magnet school (Science ILC) as part
of its initial Magnet Order, L(2090)88. Liddell v. Board of Educ.,
696 F. Supp. 444, 461, (E.D. Mo. 1988), aff'd, 907 F.2d 823 (8th
Cir. 1990) (Liddell XIX). The original magnet budget allocated
71.5% to the State of Missouri, but failed to include an allocation
for the Science ILC site acquisition. This court approved the one-
time capital funding budget with the proviso that an amount should
be added for the Science ILC site purchase. Liddell XIX, 907 F.2d
at 825. In a series of orders following Liddell XIX, the district
court defined site acquisition costs to include demolition, (Order
G(455)93), environmental testing and clean-up costs, (Order
G(866)93), as well as fees associated with the land transfer such
as title fees, survey costs, closing costs, and appraisal charges,
(Order G(1225)94).

On February 1, 1994, the Board filed a motion for an award of
attorneys' fees and expenses relating to the Science ILC and other
schools. It claimed that, as a prevailing party, it was entitled
to reimbursement of attorneys' fees pursuant to 42 U.S.C. § 1988.
The attorneys' fees requested were broken down as follows:

Attorneys' Fees for Science ILC site acquisition
$100,189.50
Expenses for Science ILC site acquisition $ 4,675.65
Attorneys' Fees for other schools $ 49,946.50
Expenses for other schools $ 1,382.90

TOTAL $156,194.55

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On May 26, 1994, the district court denied the Board's motion.
(Memorandum and Order G(1205)94 (May Order)). The Board filed a
notice of appeal on July 21, 1994. Appellate jurisdiction was
predicated on 28 U.S.C. § 1291 (appeal from final judgment).

Meanwhile, on April 26, 1994, the Board notified the district
court that it had expended $4.5 million on the acquisition of the
Science ILC site. The Board requested that the state reimburse it
$3,267,850 (71.5%) of those costs. Attorneys' fees and expenses
were not included in the Board's site acquisition cost request.
The Board explained that "[n]o amounts have been included for
attorneys' fees at the present time, which in large part are
covered in a separate pending motion." (Motion in Support of
Interim Motion at 4 n.3). On June 10, 1994, the district court
granted the Board's motion. (Order G(1225)94).

On August 16, 1994, the Board filed a new motion in which it
requested state reimbursement for attorneys' fees and expenses
($104,865.15) related to the acquisition of the Science ILC. The
fees and expenses in this request were based on the same work for
which fees were denied by the May Order, but characterized as site
acquisition costs, rather than as fees of a prevailing party. On
October 4, 1994, the district court granted the Board's motion.
(Order G(1349)94 (October Order)). The district court found that
the fees and expenses were part of the site allocation costs, and
therefore, subject to the 71.5% state allocation. Finding that the
hours worked by the Board's attorneys were excessive, however, the
district court reduced the fees requested by 25%. On February 15,
1995, this court granted the Board's voluntary motion for dismissal
of its appeal from the May Order.

DISCUSSION

Once appealed, issues before an appellate court should not be
undermined or altered. As a general rule:

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 a federal district court and a federal court of appeals should
not attempt to assert jurisdiction over a case simultaneously.
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 or its control over those
aspects of the case involved in the appeal.

Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982).
Subsequent proceedings in the district court are ordinarily
ineffective. 9 James W. Moore et al., Moore's Federal Practice ¶
203.11, at 3-47 (2d ed. 1995). In response to this general rule,
the Board proffers two arguments: i) the general rule does not
apply in this instance because this case involves ongoing district
court supervision and ii) the issue decided by the October Order
was distinct from the issue decided by the May Order and,
therefore, not divested from the district court's jurisdiction. We
reject both contentions.

First, as this court pointed out in prior Liddell litigation,
an exception from the general rule of jurisdictional divestiture is
appropriate "in the kinds of cases where the court supervises a
continuing course of conduct and where as new facts develop
additional supervisory action by the court is required." 936 F.2d
993, 996 (8th Cir. 1991) (quoting Hoffman v. Beer Drivers &
Salesmen's Local Union No. 888, 536 F.2d 1268, 1276 (9th Cir.
1976)). Moreover, we stated that in such cases, "an appeal from a
supervisory order does not divest the district court of
jurisdiction to continue its supervision, even though in the course
of that supervision the court acts upon or modifies the order from
which the appeal is taken." Id. The Board would have us extend
this exception to include every district court order that arises in
the context of ongoing supervision. Given the important concerns
represented in the general rule of limiting jurisdiction over a
case to a single court at any given time, such an expansion of this
exception would be ill conceived.

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 Instead, we must examine the nature of the particular order to
determine whether there is a need to depart from the norm. The
issue presented is whether the Board is entitled to reimbursement
for a specific set of attorneys' fees. Notably, this is not an
instance of injunctive relief concerning ongoing conduct; the issue
decided by the May Order required no further action by the district
court. Cf. Donovan v. Mazzola, 761 F.2d 1411, 1415 (9th Cir.
1985). Thus, we see no reason in this instance to depart from the
general rule of divesting the district court of jurisdiction.
Clearly, this decision is limited to the specific fees in question
and does not impugn the district court's jurisdiction with respect
to its ongoing supervision.

Second, the Board argues that the October Order decided an
issue distinct from that decided by the May Order: "The only issue
addressed by the May 26 Order was whether the Board was entitled to
attorneys' fees . . . [as] a prevailing plaintiff." Appellee Br.
at 8. We disagree. This narrow definition of the term "issue"
would eviscerate the function of the general divestiture rule.
Moreover, it stands in stark contrast to the commonly-held
understanding that multiple claims arising out of the same nucleus
of operative fact, or the same factual predicate, are really the
same `cause of action.' See Ruple v. City of Vermillion, 714 F.2d
860, 861 (8th Cir. 1983), cert. denied, 465 U.S. 1029 (1984).

The issue presented to the district court in the February
motion was whether the Board was entitled to recover the fees in
question from the State of Missouri. The Board based its February
claim of entitlement on 42 U.S.C. § 1988. The district court held
that the Board was not so entitled. The Board appealed that
decision. Now the Board makes the same claim, but under a
different theory. "[T]here is no reason to give a claimant more
than one chance to present the substance of his or her case." Id.
Appellee's assertions regarding the scope of issues on appeal are

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contrary to principles of res judicata and ordered judicial
proceedings.

The district court determined that the Board was not entitled
to attorneys' fees. That decision was appealed as a final
judgment. Once the notice of appeal was filed, the district court
had no jurisdiction to reconsider its prior decision. When the
appeal was dismissed, the district court's May Order became final.
As a result, we do not have jurisdiction by which to review the
merits of that decision.

Therefore, we vacate the district court's October Order.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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