# In th e United States Court of Federal Cl aims

N o. 14-135L ( F iled: J uly

7, 2017) NOT F O R PUB L I CATI ON

************************************* J EF F REY MEMMER, GI L B ERT * EF F I NGER, L ARRY GOEB ELAND * SUSAN GOEB EL , OW EN HAL PENY, * MATTHEW HOSTETTL E R, J O SEPH * J ENKI NS, MI CHAEL

MARTI N AND * RI TA MARTI

N, McDONALD F AMI L Y * F ARMS OF EVANSVI L L E, I NC., REI B EL * J urisdiction to Conduct F urther Proceeding s F ARMS, I

N C., J AMES SCHMI DT AND * After the F iling of a Notice of Appeal of an ROB I N SCHMI DT, * RCF C 54(b) J udg ment

* Plaintiffs, *

*

v. *

* THE UNI TED STATES, *

* Defendant. *

*************************************

ORDER DIRECTING COMP LIANCE WITH THE COURT’S JUNE 15, 2017 ORDER

I n an April 10, 2017 order, the court, at the request of the parties, directed the clerk to issue judg ment in the above-captioned case as to just compensation and interest pursuant to Rule 54(b) of the Rules of the United States Court of F ederal Claims (“RCF C”). The order reflected that the RCF C 54(b) judg ment did not pertain to the reimbursement of plaintiffs’ attorney ’s fees, costs, and ex penses pursuant to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (“URA”). The clerk issued the RCF C 54(b) judg ment on April 11, 2017, and on J une 9, 2017, defendant noticed an appeal of that judg ment. According ly , in a J une 15, 2017 order, the court directed the parties to file a joint status report “indicating their position reg ardingwhether the court should stay further proceeding s in this case”–essentially
, proceeding s with respect to attorney ’s fees, costs, and ex penses–“pending

the resolution of defendant’s appeal.”

I n their joint status report, filed on J une 30, 2017, the parties assert that because defendant appealed the RCF C 54(b) judg ment, the court “is divested of jurisdiction and need not enter a stay

in order to suspend further proceeding s in this court related to the appeal pending resolution of the appellate proceeding s.” The parties misunderstand the applicable precedent. W h ile it is true that defendant’s appeal divests this court of jurisdiction over issues related to the RCF C 54(b) judg ment, see Grig g s v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)(“The filing of a notice of appeal is an event of jurisdictional sig n ificance–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.”); Gilda I ndus., I nc. v. United States, 511 F .3d 1348, 1350 (F ed. Cir. 2008) (“Ordinarily , the act of filinga notice of appeal confers jurisdiction on an appellate court and divests the trial court of jurisdiction over matters related to the appeal.”), the court retains jurisdiction to conduct proceeding s on plaintiffs’ anticipated URA claim.
As an initial matter, by

the rule’s plain tex t, judg ments issued pursuant to RCF C 54(b) are judg ments “as to one or more, but fewer than all, claims or parties . . . .” Consequently
, upon the issuance of an RCF C 54(b) judg ment, one or more claims remain for the court’s resolution. I n this case, the RCF C 54(b) judg ment pertained to defendant’s liability to pay plaintiffs just compensation and interest; it did not pertain to defendant’s liability to pay plaintiffs attorney ’s fees, costs, and expenses under the URA. Thus, defendant’s appeal did not encompass plaintiffs’ anticipated URA claim.
Moreover, the applicable precedent provides an exception to the rule that a notice of appeal divests a trial court of jurisdiction–trial courts retain jurisdiction to entertain applications for attorney ’s fees and costs. The United States Supreme Court (“Supreme Court”) has remarked that, “[ a] s a g eneral matter, . . . it [ is] indisputable that a claim for attorney ’s fees is not part of the merits of the action to which the fees pertain.” B udinich v. B e cton Dickinson & Co., 486 U.S. 196, 200 (1988). In other words, such a claim is collateral to the merits of the action. W h ite v. N.H. Dep’t of Emp’t Sec., 455 U.S. 445, 452 n.14 (1982). Accordingly , “[ m] ost courts have held that a district court may award attorney ’s fees . . . after a timely notice of appeal has been filed.” 20 J ames W m. Moore, Moore’s F e deral Practice § 303.32[ 2] [ b] [iii] (2012); see, e.g ., Tancredi v. Metro. L ife Ins. Co., 378 F .3d 220, 225 (2d Cir. 2004) (“[ N] otwithstanding a pending appeal, a district court retains residual jurisdiction over collateral matters, including claims for attorney s’ fees.”); Creations Unlimited, I nc. v. McCain, 112 F .3d 814, 817 (5th Cir. 1997) (“A district court has jurisdiction to rule on a motion for ancillary attorney s’ fees even after the filing

of a notice of appeal with respect to the underly ing claims.”); City

of Chanute v. W illiams Nat. Gas Co., 955 F

. 2d 641, 658 (10th Cir. 1992) (“The law is well settled [ that] the district judg e retains jurisdiction over the issue of attorneys’ fees even thoug h an appeal on the merits of the case is pending .”), overruled on other g r ounds by Sy stemcare, I

nc. v. W angL abs. Corp., 117 F .3d 1137 (10th Cir. 1997); Apostol v. Gallion, 870 F .2d 1335, 1338 (7th Cir. 1989) (“A district court . . . may award attorneys’ fees while the court of appeals addresses the merits . . . because there is no concurrent ex ercise of power on the same subject and little overlap of issues. True, a decision reversing the judg ment on the merits would affect or nullify the award of fees, but the subjects are distinct.”); L ang ham-Hill Petroleum Inc. v. S. F uels Co., 813 F .2d 1327, 1330-31 (4th Cir. 1987) (holdingthat it was bound by the Supreme Court’s decision in W hite to hold that the district court could award attorney ’s fees after the filing of a notice of appeal); Masalosalo v. Stonewall Ins. Co., 718 F .2d 955, 957 (9th Cir. 1983) (“The district court retained the power to award attorney s’ fees after the notice of appeal from the decision on the merits had been filed.”); Q I

nteg rated Cos. v. United States, No. 16-101C, 2017 W L 2859222, at *4 (F ed. Cl. J uly 5, 2017) (“[ T] he trial court maintains jurisdiction over claims for attorney s’ fees while the merits of a case are on appeal.”).

-2-I n lig ht of the fact that the court possesses jurisdiction to consider plaintiffs’ anticipated

URA claim notwithstanding defendant’s filing of a notice of appeal, the court directs the parties to comply with its J une 15, 2017 order, namely , to “file a joint status report indicating their position reg ardingwhether the court should stay further proceeding s in this case pendingthe resolution of defendant’s appeal.” The parties shall file their joint status report no later than F riday, July 21, 2017

.
IT IS SO ORDERED.
s/ Marg aret M. Sweeney MARGARET M. SW EENEY J udg e

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