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301 Nebraska Report

WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 301 Neb. 810

Azar Webb, appellee, v. Nebraska Departm

of Health and Human Se

et al., appellants

___ N.W.2d ___

Filed December 7, 2018. No. S-17-931.

1. Jurisdiction. A jurisdictional question which does not involve a factual 

dispute presents a question of law.

2. Statutes. Statutory interpretation presents a question of law.

3. Judgments: Appeal and Error. Appellate courts independently review 

questions of law decided by a lower court.

4. Jurisdiction: Appeal and Error. Before reaching the legal issues 

presented for review, it is the duty of an appellate court to determine 

whether it has jurisdiction over the matter before it.

5. Courts: Jurisdiction: Legislature: Appeal and Error. In order for the 

Nebraska Supreme Court to have jurisdiction over an appeal, appellate 

jurisdiction must be specifically provided by the Legislature.

6. Jurisdiction: Final Orders: Appeal and Error. When an appeal presents the two distinct jurisdictional issues of appellate jurisdiction and 

the trial court’s lack of subject matter jurisdiction, the first step is to 

determine the existence of appellate jurisdiction by determining whether 

the lower court’s order was final and appealable.

7. ____: ____: ____. For an appellate court to acquire jurisdiction of an 

appeal, the party must be appealing from a final order or a judgment.

8. Final Orders: Appeal and Error. The three types of final orders that 

an appellate court may review are (1) an order that affects a substantial 

right and that determines the action and prevents a judgment, (2) an 

order that affects a substantial right made during a special proceeding, 

and (3) an order that affects a substantial right made on summary application in an action after a judgment is rendered.

9. Judgments: Final Orders: Civil Rights: Appeal and Error. A court’s 

decision on the merits of an action under 42 U.S.C. § 1983 (2012) is an 

appealable order.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

01/11/2019 01:08 AM CST
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10. Courts: Jurisdiction: Appeal and Error. The matter of acquiring jurisdiction by an appellate court is indeed a technical matter and one over 

which courts have no discretion.

11. Jurisdiction: Words and Phrases. The term “jurisdictional” properly 

applies only to prescriptions delineating the classes of cases (subject 

matter jurisdiction) and the persons (personal jurisdiction) implicating 

that authority.

12. Jurisdiction: Presumptions. In a court of general jurisdiction, jurisdiction may be presumed absent a record showing the contrary.

13. Administrative Law: Courts: Appeal and Error. An Administrative 

Procedure Act proceeding in district court for review of a decision by an 

administrative agency is not an “appeal” in the strict sense of the term, 

meaning the power and authority conferred upon a superior court to 

reexamine and redetermine causes tried in inferior courts, but, rather, is 

the institution of a suit to obtain judicial-branch review of a nonjudicialbranch decision.

Appeal from the District Court for Lancaster County: Sus

I. Strong, Judge. Affirm

Douglas J. Peterson, Attorney General, and David A. Lopez 

for appellants.

Robert E. McEwen and Sarah C. Helvey, of Nebraska 

Appleseed Center for Law in the Public Interest, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg 

Funke, 

The Nebraska Department of Health and Human Services 

and two of the department’s officers, in their official capacities 

(collectively DHHS), appeal the district court for Lancaster 

County’s determinations in favor of Azar Webb. After DHHS 

ended Webb’s Medicaid benefits and denied his petition for 

reinstatement, Webb filed a claim in district court under the 

Administrative Procedure Act (APA)1 for unlawful termination 

1 See Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 2014, Cum. Supp. 2016, 

& Supp. 2017).
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of Medicaid eligibility. Webb’s district court pleading added, 

along with his administrative appeal, a claim of violation of 

federal rights under 42 U.S.C. § 1983 (2012).

The court reversed DHHS’ decision and ordered reinstatement of Webb’s coverage and reimbursement of medical 

expenses which should have been covered. The court also 

found in Webb’s favor on the merits of his § 1983 claim 

and enjoined DHHS officials from denying Webb Medicaid 

eligibility. The court denied Webb’s request for attorney fees 

under state law; granted his request for attorney fees pursuant 

to 42 U.S.C. § 1988 (2012); provided Webb 10 days to submit evidence of his fees; and, following a hearing, awarded 

Webb attorney fees pursuant to § 1988. DHHS filed a notice 

of appeal within 30 days of the order regarding attorney fees. 

DHHS’ sole argument on appeal is that the district court 

lacked subject matter jurisdiction to consider Webb’s § 1983 

claim in the same lawsuit in which the court considered an 

appeal from a contested case under the APA and that, as a 

result, the court lacked the authority to award Webb attorney fees.

We conclude that both the court’s judgment on the merits and its order for attorney fees are final and appealable. 

We have appellate jurisdiction to consider DHHS’ appeal, 

because DHHS timely appealed from the attorney fees order 

and DHHS’ challenge goes to the district court’s authority to 

grant relief under §§ 1983 and 1988.

We find that the district court is a court of general, original 

jurisdiction with authority to consider a § 1983 claim and that 

the APA does not include any provisions limiting a district 

court’s general jurisdiction with respect to claims independent 

of the APA. It falls to the Legislature, and not to this court, 

to limit a district court’s authority to consider a § 1983 claim 

in conjunction with an APA claim. As a result, once the district court separately and independently resolved Webb’s APA 

claim, the court had the authority to grant Webb relief under 

§§ 1983 and 1988. We therefore affirm.
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WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

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BACKGROUND

Webb was a participant in the bridge to independence program, a Medicaid program provided under the Young Adult 

Bridge to Independence Act, Neb. Rev. Stat. §§ 43-4501 to 

43-4514 (Reissue 2016). In July 2015, the separate juvenile 

court of Douglas County made a determination that participating in the program was in Webb’s best interests. Webb 

entered into a “Voluntary Placement Agreement” with the 

State of Nebraska and was placed under the care and responsibility of DHHS. When Webb turned 21 years of age, DHHS 

determined that Webb was no longer eligible for Medicaid 

and discharged him from the program. Webb appealed and 

argued that pursuant to title XIX of the Social Security Act, 

he was Medicaid eligible until the age of 26 under 42 U.S.C. 

§ 1396a(a)(10)(A)(i)(IX) (Supp. V 2017). DHHS affirmed its 

decision to terminate Webb’s coverage on the basis that it was 

not certain that Webb’s participation in the bridge to independence program constituted “foster care” under the responsibility of the State, one of the four statutory requirements for 

eligibility under 42 U.S.C. § 1396a(a)(10)(A)(i)(IX). DHHS 

acknowledged that Webb had met the other statutory criteria.

Webb filed a petition in district court which asserted two 

grounds for relief against DHHS. Webb’s first claim for relief 

was for judicial review under the APA. Webb alleged that 

the court had jurisdiction over his APA claim pursuant to 

§ 84-917. In addition, Webb asserted a claim for deprivation 

of federal rights under § 1983. Webb’s petition alleged that 

jurisdiction over the § 1983 claim was proper pursuant to Neb. 

Rev. Stat. § 24-302 (Reissue 2016), which provides that “[t]he 

district courts shall have and exercise general, original and 

appellate jurisdiction in all matters, both civil and criminal, 

except where otherwise provided.” Webb’s petition alleged 

that he had significant healthcare needs which were urgent 

and ongoing.

DHHS moved to dismiss the § 1983 claim pursuant to Neb. 

Ct. R. Pldg. § 6-1112(b)(6). Webb responded by moving for 
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summary judgment on the § 1983 claim. The court held a hearing on these motions and Webb’s APA claim.

On May 10, 2017, regarding Webb’s APA claim, the court 

issued an order which determined that Webb was in “foster 

care” through his participation in the bridge to independence 

program. The court ruled that because Webb had entered into a 

“Voluntary Placement Agreement” with DHHS, he was under 

the jurisdiction of the juvenile court, he was under DHHS’ 

placement and care, DHHS was responsible for supervising 

and managing his services, and he was placed in a supervised independent living setting. As a result, the court found 

that Webb had met all eligibility requirements of 42 U.S.C. 

§ 1396a(a)(10)(A)(i)(IX) and concluded that Medicaid coverage for Webb was mandatory until he is 26 years of age. 

The court reversed DHHS’ decision and remanded the cause 

with directions to reinstate Webb’s Medicaid coverage and 

to reimburse him for medical expenses which should have 

been covered.

Once the court determined the merits of Webb’s APA claim, 

in the same written order, the court considered the parties’ 

motions concerning the § 1983 claim. In regard to the motion 

to dismiss, the court considered whether it had jurisdiction to 

adjudicate a claim for judicial review under the APA and a 

§ 1983 claim in the same proceeding. The court found that it 

did based on our decision in Maldonado v. Nebraska Dept. of 

Pub. Welfare,

2

 which cited the U.S. Supreme Court’s decision 

in Maine v. Thiboutot3 for the proposition that “a claim under 

§ 1983 may be brought in a state court in the procedural context of a state court’s reviewing the actions of a state administrative agency, and attorney fees may be awarded under § 1988 

in such a case.”4

2 See Maldonado v. Nebraska Dept. of Pub. Welfare, 223 Neb. 485, 391 

N.W.2d 105 (1986).

3 See Maine v. Thiboutot, 448 U.S. 1, 100 S. Ct. 2502, 65 L. Ed. 2d 555 

(1980).

4 Maldonado, supra note 2, 223 Neb. at 490, 391 N.W.2d at 109.
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The court granted in part DHHS’ motion to dismiss the 

§ 1983 claim, finding that Webb’s § 1983 claim could not be 

pursued against DHHS. The court denied the remainder of 

the motion and found the claim was properly brought against 

the official capacity defendants based on their unlawful termination of Webb’s Medicaid eligibility. The court then sustained Webb’s motion for summary judgment on his § 1983 

claim, because there was no genuine issue of material fact 

that (1) Webb was an intended beneficiary of 42 U.S.C. 

§ 1396a(a)(10)(A)(i)(IX), (2) the rights Webb sought to be 

enforced were specific and enumerated, and (3) the obligation 

imposed on the State was unambiguous and binding. The court 

granted Webb’s request for injunctive relief in the form of 

enjoining the official capacity defendants from denying Webb 

Medicaid eligibility.

The court’s May 10, 2017, order denied Webb’s request 

for attorney fees under state law, Neb. Rev. Stat. § 25-1803 

(Reissue 2016), but granted Webb’s request for attorney fees 

under § 1988 and provided Webb 10 days to submit evidence 

in support of a fee award. The court held a hearing on the 

amount of attorney fees to be awarded and, on August 7, 

issued an order which determined that Webb was a prevailing 

party under § 1988(b) and awarded him attorney fees in the 

amount of $27,815 against the individual defendants in their 

official capacities.

On August 30, 2017, DHHS filed a notice of appeal. The 

notice sought to appeal the district court’s May 10 and August 

7 orders. Webb filed motions for summary dismissal, arguing 

that the court’s May 10 order was a final, appealable order and 

had not been appealed within 30 days. The Nebraska Court of 

Appeals overruled Webb’s motions without prejudice, and we 

granted DHHS’ motion to bypass the Court of Appeals under 

our statutory authority to regulate the caseloads of the appellate courts of this State.5

5 See Neb. Rev. Stat. § 24-1106 (Supp. 2017).
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ASSIGNMENTS OF ERROR

DHHS claims, restated, that the district court lacked subject 

matter jurisdiction to (1) consider Webb’s § 1983 claim in the 

same proceeding in which it reviewed Webb’s claim for judicial review under the APA and (2) award Webb attorney fees 

pursuant to § 1988.

STANDARD OF REVIEW

[1-3] A jurisdictional question which does not involve a 

factual dispute presents a question of law.6 Statutory interpretation presents a question of law.7

 Appellate courts independently 

review questions of law decided by a lower court.8

ANALYSIS

DHHS asserts that the district court lacked subject matter 

jurisdiction to consider Webb’s § 1983 claim, because Webb 

“added [his § 1983 claim] to his petition for judicial review 

under the APA.”9 DHHS contends, “Nebraska’s APA statutes 

do not confer authority on a district court sitting in review of 

an administrative agency decision to consider a freestanding 42 

U.S.C. § 1983 claim in combination with the APA appeal.”10

DHHS “does not contend that Webb is barred from bringing a 

§ 1983 claim or even from bringing such a claim in state court. 

But he must have done so in a separate civil action and not 

simply as an extra cause of action in an APA appeal.”11 DHHS 

argues that because the court lacked subject matter jurisdiction 

to consider Webb’s § 1983 claim, the court necessarily lacked 

jurisdiction to consider an award of attorney fees under § 1988.

6 See J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893 

(2017).

7 See id.

8 Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284 

(2017).

9 Brief for appellant at 2.

10 Id. at 7.

11 Id.
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Webb’s primary argument in response is that this court 

lacks appellate jurisdiction to consider DHHS’ subject matter 

jurisdiction argument, because DHHS did not appeal within 

30 days of the court’s order on the merits. Webb contends 

that even though a request for attorney fees was outstanding, 

based on our rules governing the finality of the disposition 

of § 1983 claims, the court’s judgment on the merits was a 

final, appealable order.12 Webb contends that DHHS timely 

appealed only the court’s order awarding attorney fees and 

that DHHS’ argument is collaterally attacking the judgment 

on the merits.

No Independent Appellate Juris

Over May 10, 2017, Or

[4] Before reaching the legal issues presented for review, it 

is the duty of an appellate court to determine whether it has 

jurisdiction over the matter before it.13 DHHS seeks to appeal 

both the district court’s judgment on the merits and the court’s 

attorney fees order. Because DHHS did not file a notice of 

appeal within 30 days of the court’s judgment on the merits, 

we are confronted with the issue of whether we have appellate 

jurisdiction to review DHHS’ challenge to the district court’s 

May 10, 2017, order.

[5] Appellate jurisdiction is the power and authority conferred upon a superior court to reexamine and redetermine 

causes tried in inferior courts.14 The Nebraska Constitution 

confers the Nebraska Supreme Court with only “such appellate jurisdiction as may be provided by law.”15 In order 

for this court to have jurisdiction over an appeal, appellate 

12 See Gillpatrick v. Sabatka-Rine, 297 Neb. 880, 902 N.W.2d 115 (2017).

13 E.D. v. Bellevue Pub. Sch. Dist., 299 Neb. 621, 909 N.W.2d 652 (2018).

14 In re Application of Burlington Northern RR. Co., 249 Neb. 821, 545 

N.W.2d 749 (1996).

15 Neb. Const. art. V, § 2. Accord Boyd v. Cook, 298 Neb. 819, 906 N.W.2d 

31 (2018).
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jurisdiction must be specifically provided by the Legislature.16

An appellate court acquires no jurisdiction unless the appellant has satisfied the statutory requirements for appellate 

jurisdiction.17

[6,7] When an appeal presents the two distinct jurisdictional 

issues of appellate jurisdiction and the trial court’s lack of 

subject matter jurisdiction, the first step is to determine the 

existence of appellate jurisdiction by determining whether the 

lower court’s order was final and appealable.18 For an appellate 

court to acquire jurisdiction of an appeal, the party must be 

appealing from a final order or a judgment.19 The Legislature 

has defined a “judgment” as “the final determination of the 

rights of the parties in an action.”20 Conversely, every direction of a court or judge, made or entered in writing and not 

included in a judgment, is an order.21

[8] The three types of final orders that an appellate court 

may review are (1) an order that affects a substantial right 

and that determines the action and prevents a judgment, (2) 

an order that affects a substantial right made during a special 

proceeding, and (3) an order that affects a substantial right 

made on summary application in an action after a judgment 

is rendered.22 To be a final order under the first category of 

§ 25-1902, the order must dispose of the whole merits of the 

case and leave nothing for the court’s further consideration.23

If a lower court has issued a final, appealable order, the 

next step is to determine whether an appellant has satisfied 

16 Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).

17 Id.

18 See Big John’s Billiards v. State, 283 Neb. 496, 811 N.W.2d 205 (2012).

19 E.D., supra note 13.

20 Neb. Rev. Stat. § 25-1301 (Reissue 2016).

21 Neb. Rev. Stat. § 25-914 (Reissue 2016).

22 Neb. Rev. Stat. § 25-1902 (Reissue 2016).

23 Big John’s Billiards, supra note 18. See Ginger Cove Common Area Co. v. 

Wiekhorst, 296 Neb. 416, 893 N.W.2d 467 (2017).
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the statutory requirements necessary for this court to obtain 

appellate jurisdiction over the order. Under Neb. Rev. Stat. 

§ 25-1912 (Supp. 2017), to vest an appellate court with jurisdiction, a party must timely file a notice of appeal.24 A party 

must file a notice of appeal within 30 days of the judgment, 

decree, or final order from which the party is appealing.25

For the reasons set forth below, we find that the May 10, 

2017, order was final and appealable and that because DHHS 

did not appeal that order within 30 days, DHHS did not satisfy the statutory requirements to obtain appellate review of 

that order.

The court’s May 10, 2017, order meets the statutory definition of “judgment” provided under § 25-1301. The order was a 

comprehensive decision on the merits of all of Webb’s claims. 

The order resolved the APA claim and granted Webb’s motion 

for summary judgment on his § 1983 claim. The merits order 

also addressed Webb’s request for attorney fees. The order 

denied Webb’s request for attorney fees pursuant to state law, 

granted Webb’s request for reasonable attorney fees under 

§ 1988, and gave Webb 10 days to submit evidence to determine the amount of fees to award.

The court’s May 10, 2017, order has both state and federal 

law components, and we must analyze both components to 

determine whether the order is final. We first address the state 

law component. The court’s decision on Webb’s APA claim 

was final, and the order entirely resolved Webb’s APA claim 

without leaving anything for consideration. The order would 

have been immediately appealable had the order solely encompassed a decision on Webb’s APA claim.

Webb’s request for attorney fees under § 25-1803 could have 

impacted the finality of the state law component of the May 10, 

2017, order. Our jurisprudence on the issue of an unresolved 

request for attorney fees made pursuant to state law is familiar. 

24 Clarke, supra note 8.

25 § 25-1912(1).
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We have explained that attorney fees are generally treated as 

an element of court costs and that an award of costs in a judgment is considered a part of the judgment.26 We have stated 

the requirement that a party seeking statutorily authorized fees 

must make a request for such fees prior to a judgment in the 

cause.27 And, critically, we have held that a judgment does not 

become final and appealable until the trial court has ruled upon 

a pending statutory request for attorney fees.28 Here, Webb 

requested attorney fees pursuant to state law in his petition and 

the court denied the request. Thus, there was no outstanding 

request for fees that prevented the state law component of the 

court’s order from becoming final when the order was issued 

on May 10.

We next consider the federal law component of the May 

10, 2017, order. In that portion of the order, the court granted 

Webb’s motion for summary judgment on his § 1983 claim. 

Orders which fully dispose of a case on summary judgment 

are final and appealable.29 The court also found that DHHS 

was liable for fees under § 1988, but did not determine the 

amount of fees to award. The question is whether the lack 

of a final determination on the fee award prevented the federal component of the judgment on the merits—the court’s 

decision on Webb’s § 1983 claim—from becoming final and 

appealable.

[9] As stressed by Webb, we addressed this issue in 

Gillpatrick v. Sabatka-Rine,

30 where we held that a court’s 

decision on the merits of a § 1983 action is an appealable 

26 See Murray v. Stine, 291 Neb. 125, 864 N.W.2d 386 (2015).

27 Id.

28 Id.; Kilgore v. Nebraska Dept. of Health & Human Servs., 277 Neb. 456, 

763 N.W.2d 77 (2009); Olson v. Palagi, 266 Neb. 377, 665 N.W.2d 582 

(2003).

29 See, Big John’s Billiards, supra note 18; Gruenewald v. Waara, 229 Neb. 

619, 428 N.W.2d 210 (1988).

30 Gillpatrick, supra note 12.
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order. We found that our jurisprudence which treated orders 

disposing of state law actions as nonfinal where a request for 

attorney fees is outstanding did not apply to orders resolving 

the merits of § 1983 actions.31 For example, we said that in a 

§ 1983 action, a party is not required to separately move for 

attorney fees until after the trial court enters a final order or 

judgment on the merits.32

Our decision in Gillpatrick drew from White v. New 

Hampshire Dept. of Empl. Sec.,

33 in which the U.S. Supreme 

Court held that a request for attorney fees under § 1988 is not 

a motion to alter or amend the judgment within the meaning 

of Fed. R. Civ. P. 59(e), because the fee request does not seek 

“reconsideration of matters properly encompassed in a decision 

on the merits.”34 The Court in White reasoned that a request for 

attorney fees under § 1988 raises legal issues collateral to and 

separate from the decision on the merits, and observed in dicta 

that “the collateral character of the fee issue establishes that an 

outstanding fee question does not bar recognition of a merits 

judgment as ‘final’ and ‘appealable.’”35

Following White, the prevailing rule in federal circuits was 

that a judgment on the merits is final for purposes of appeal 

even if the amount of attorney fees to award pursuant to 

§ 1988 has not been determined.36 According to these same 

principles, a judgment on the merits is appealable even when 

31 Id. See Kilgore, supra note 28.

32 Gillpatrick, supra note 12.

33 White v. New Hampshire Dept. of Empl. Sec., 455 U.S. 445, 102 S. Ct. 

1162, 71 L. Ed. 2d 325 (1982).

34 Id., 455 U.S. at 451.

35 Id., 455 U.S. at 452-53 n.14.

36 See, Morgan v. Union Metal Mfg., 757 F.2d 792 (6th Cir. 1985); Abrams 

v. Interco Inc., 719 F.2d 23 (2d Cir. 1983); American Re-Insurance v. 

Insurance Com’r, Etc., 696 F.2d 1267 (9th Cir. 1983); Cox v. Flood, 

683 F.2d 330 (10th Cir. 1982); Halderman v. Pennhurst State School & 

Hospital, 673 F.2d 628 (3d Cir. 1982).
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the judgment also includes a determination that the prevailing 

party is entitled to an award of fees under § 1988, but leaves 

open the amount of fees to be awarded.37 In this situation, 

the party who fails to timely appeal from the merits and fee 

liability judgment forfeits the right to an appellate review of 

the merits.38

The U.S. Supreme Court then held in Budinich v. Becton 

Dickinson & Co.,

39 that a decision on the merits is a final 

decision under federal law for purposes of appeal even if the 

award or amount of attorney fees for the litigation remains to 

be determined. Similar to the Court’s decision in White, the 

Court in Budinich found that the pendency of a decision on an 

award of attorney fees is an issue collateral to a decision on the 

merits, because “a claim for attorney’s fees is not part of the 

merits of the action to which the fees pertain,”40 and that therefore, the lack of finality of a collateral issue would not prevent 

the finality of a judgment on the merits.

In this case, the May 10, 2017, order ended the litigation on 

the § 1983 claim by granting summary judgment. The court 

awarded injunctive relief and no damages. Independent of that 

judgment, the court found DHHS liable for an undetermined 

amount of attorney fees under § 1988, a statutory right separate from § 1983. As the U.S. Supreme Court recognized in 

White, Webb’s request for fees under § 1988 is not effective as 

a motion to alter or amend the district court’s May 10 merits 

judgment, because fees are not part of that judgment and the 

court’s later decision on the amount of fees to award would 

37 See, Exchange Nat. Bank of Chicago v. Daniels, 763 F.2d 286 (7th Cir. 

1985); Morgan, supra note 36.

38 Id.

39 Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S. Ct. 1717, 

100 L. Ed. 2d 178 (1988). See, also, Ray Haluch Gravel Co. v. Central 

Pension Fund of Operating Engineers and Participating Employers, 571 

U.S. 177, 134 S. Ct. 773, 187 L. Ed. 2d 669 (2014).

40 Budinich, supra note 39, 486 U.S. at 200.
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not change the outcome on the merits regarding DHHS’ violation of Webb’s constitutional rights.

The same situation was presented in Crossman v. 

Maccoccio,

41 which held that a notice of appeal filed more 

than 30 days after entry of final judgment on the merits of 

the litigation, but within 30 days after the subsequent order 

granting § 1988 attorney fees, was timely as to appeal the fee 

award order but untimely as to the merits judgment, and that 

the merits judgment became final even though the statutory 

attorney fees issue remained unresolved. Accordingly, here, the 

court’s merits and fees determinations were independent final 

determinations and required independent appeals.

In the instant matter, the merits determinations in the May 

10, 2017, order were appealable, but the determination in the 

same order that DHHS was liable for fees under § 1988 was 

not appealable at that time. An order awarding but not quantifying attorney fees is not final under federal law.42 A finding that a party is liable for attorney fees is an interlocutory 

determination,43 analogous to a summary judgment determination on liability but leaving the issue of damages unresolved. 

An award of attorney fees entered after a final disposition on 

the merits is a final, appealable decision.44

[10] Having analyzed both the state and federal law components of the court’s May 10, 2017, order and concluding 

that the order was appealable, it becomes clear that DHHS’ 

notice of appeal was not timely filed to provide an independent basis for appellate review of that order. Although 

DHHS did not have the benefit of our decision in Gillpatrick, 

the matter of acquiring jurisdiction by an appellate court is 

41 Crossman v. Maccoccio, 792 F.2d 1 (1st Cir. 1986).

42 See, Com. of Pa. v. Flaherty, 983 F.2d 1267 (3d Cir. 1993); Saber v. 

FinanceAmerica Credit Corp., 843 F.2d 697 (3d Cir. 1988); Phelps v. 

Washburn University of Topeka, 807 F.2d 153 (10th Cir. 1986).

43 See Forsyth v. Barr, 19 F.3d 1527 (5th Cir. 1994).

44 Blum v. Stenson, 465 U.S. 886, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984).
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indeed a technical matter and one over which courts have 

no discretion.45

However, DHHS has also asserted a challenge to the district court’s subject matter jurisdiction by arguing that the 

court could not award attorney fees if the court lacked the 

authority to consider Webb’s § 1983 claim. It is undisputed 

that the district court’s order awarding Webb attorney fees 

was a final order and that DHHS timely appealed from that 

order. It is also undisputed that the court’s award of fees pursuant to § 1988 was based on the determination that Webb 

had prevailed on his § 1983 claim. Therefore, our review of 

the attorney fees order includes the issue of whether the court 

had subject matter jurisdiction over Webb’s § 1983 claim. As 

a result, we are required to consider whether the district court 

had subject matter jurisdiction to consider Webb’s § 1983 

claim.

Court Had Subject Matter Juris

Over § 1983 Clai

DHHS contends that the court lacked subject matter jurisdiction to decide Webb’s § 1983 claim and therefore also lacked 

jurisdiction to award Webb fees under § 1988. DHHS does 

not challenge the amount of fees awarded but only Webb’s 

entitlement to a fee award. Webb contends that the district 

court properly considered Webb’s § 1983 claim pursuant to its 

general jurisdiction.

DHHS concedes that a district court has the authority to 

adjudicate an APA appeal and a § 1983 claim, but asserts that 

the claims must be brought in separate lawsuits. DHHS argues 

that the Legislature has conferred jurisdiction upon district 

courts to hear appeals from contested cases before administrative agencies under the APA and that this court has found 

jurisdictional defects where judicial review of the agency’s 

45 In re Covault Freeholder Petition, 218 Neb. 763, 359 N.W.2d 349 

(1984).
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decision under the APA is not sought in the mode and manner 

provided by statute.46

DHHS further argues the APA statutes do not specifically 

provide for the addition of an original claim such as a § 1983 

claim to a petition for judicial review under the APA and that 

once the district court had jurisdiction over the APA claim, the 

court could not simultaneously exercise its general, original 

jurisdiction to consider a § 1983 claim in the same case.

All of DHHS’ arguments are framed in terms of a lack 

of subject matter jurisdiction. DHHS makes no argument 

that, for example, the APA claim and the § 1983 claim were 

improperly joined under Neb. Rev. Stat. § 25-701 (Reissue 

2016) or that the district court should have bifurcated the 

matters. As those issues are not before us, we express no view 

on them.

In response, Webb argues that we should affirm the district court’s reliance on Maldonado v. Nebraska Dept. of Pub. 

Welfare47 and conclude that a § 1983 claim may be brought in 

the procedural context of an APA appeal. DHHS acknowledges 

that Maldonado forecloses its position on appeal, but argues 

that the pronouncement in Maldonado relied upon by Webb 

and the district court was made in error and that we should 

overrule Maldonado.

In Maldonado, we considered whether the district court 

appropriately awarded attorney fees pursuant to § 1988 after 

the plaintiffs succeeded in their APA appeal based on the 

denial of dependent child benefits. The defendants argued that 

the award of fees was erroneous, because the petition had not 

requested relief under § 1983. We found the plaintiffs were not 

required to allege their specific theory of recovery and that the 

facts alleged had sufficiently stated a claim under § 1983.48

46 See, e.g., Kozal v. Nebraska Liquor Control Comm., 297 Neb. 938, 902 

N.W.2d 147 (2017); J.S., supra note 6.

47 Maldonado, supra note 2.

48 Id.
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We held that based on the U.S. Supreme Court’s decision in 

Maine v. Thiboutot49 the attorney fees were recoverable. We 

stated that in Thiboutot, “[t]he Supreme Court held that a claim 

under § 1983 may be brought in a state court in the procedural context of a state court’s reviewing the actions of a state 

administrative agency, and attorney fees may be awarded under 

§ 1988 in such a case.”50

In Thiboutot, the U.S. Supreme Court interpreted the language of § 1983, which provides in pertinent part:

“Every person who, under color of any statute . . . subjects, or causes to be subjected, any citizen of the United 

States or other person within the jurisdiction thereof 

to the deprivation of any rights . . . secured by the 

Constitution and laws, shall be liable to the party injured 

in an action at law, suit in equity, or other proper proceeding for redress.” (Emphasis added.)51

The Court concluded that the phrase “‘and laws’” within 

§ 1983 includes claims solely based on statutory violations 

of federal law and found that “the plain language of [§ 1983] 

undoubtedly embraces [the] claim that petitioners violated the 

Social Security Act.”52

We agree with DHHS that the issue in Thiboutot was 

whether § 1983 encompasses statutory claims and that neither Thiboutot nor Maldonado squarely presented the issue of 

whether a § 1983 claim is properly brought in the context of 

a state court’s review of an administrative appeal. Therefore, 

our statement in Maldonado that “[t]he Supreme Court held

that a claim under § 1983 may be brought in a state court in 

the procedural context of a state court’s reviewing the actions 

of a state administrative agency . . .”53 misreads Thiboutot and 

49 Thiboutot, supra note 3.

50 Maldonado, supra note 2, 223 Neb. at 490, 391 N.W.2d at 109.

51 Thiboutot, supra note 3, 448 U.S. at 4, quoting 42 U.S.C. § 1983.

52 Id.

53 Maldonado, supra note 2, 223 Neb. at 490, 391 N.W.2d at 109.
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states a conclusion without analyzing the jurisdictional framework specific to Nebraska law. For these reasons, Maldonado

is disapproved.

Even though we disapprove of authority contrary to DHHS’ 

position, DHHS’ position lacks merit because there is an 

absence of affirmative authority to support the outcome that 

DHHS proposes. DHHS relies upon Kozal v. Nebraska Liquor 

Control Comm.

54 for the proposition that “[w]here a district 

court has statutory authority to review an action of an administrative agency, the district court may acquire jurisdiction 

only if the review is sought in the mode and manner and 

within the time provided by statute.” However, Kozal concerned the issue of whether an appeal of a contested case 

under the APA had been perfected in order to achieve judicial review in district court. There is no dispute in this case 

that the district court had jurisdiction over the APA appeal. 

DHHS also relies upon Betterman v. Department of Motor 

Vehicles,

55 in which we held the APA does not authorize a district court reviewing the decision of an administrative agency 

to receive additional evidence, whether by judicial notice or 

other means. But here, the district court made clear in its 

order that in reviewing Webb’s appeal, it considered only 

evidence that was made part of the record in the agency proceeding. Moreover, DHHS does not contest the district court’s 

decision on the APA claim.

[11] DHHS’ lack of authority for its position indicates that 

its argument is one of policy. DHHS’ argument therefore uses 

the term “jurisdiction” too loosely. DHHS argues that the practice of allowing a party to bring a § 1983 claim in the same 

case as an APA claim “should be disallowed,” in part based 

on “policy consequences.”56 This argument raises concerns 

54 Kozal, supra note 46, 297 Neb. at 945, 902 N.W.2d at 154.

55 Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d 

570 (2007).

56 Reply brief for appellant at 14.
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distinct from the issue of whether a district court has certain 

jurisdictional authority. “‘[T]he term “jurisdictional” properly 

applies only to “prescriptions delineating the classes of cases 

(subject matter jurisdiction) and the persons (personal jurisdiction)” implicating that authority.’”57 Here, the district court had 

authority to consider the § 1983 claim.

[12] The Nebraska Constitution provides that “district courts 

shall have both chancery and common law jurisdiction, and 

such other jurisdiction as the Legislature may provide.”58

Section 24-302 provides that “[t]he district courts shall have 

and exercise general, original and appellate jurisdiction in all 

matters, both civil and criminal, except where otherwise provided.” (Emphasis supplied.) In a court of general jurisdiction, 

jurisdiction may be presumed absent a record showing the 

contrary.59 The absence of jurisdiction of the district court will 

not be presumed, but must affirmatively appear from the face 

of the record itself.60

DHHS admits to some extent that it is relying on case law 

only by way of analogy and that “this is an issue of Nebraska 

law that should be analyzed solely on the jurisdictional language of Nebraska’s APA statute.”61 Therefore, for DHHS’ 

argument to succeed, DHHS must point to a statute which 

removes the district court’s general, original jurisdiction once 

an APA proceeding has been initiated. Such a jurisdictionlimiting provision must be specific to a claim such as a § 1983 

claim, because the Legislature cannot limit or control the 

57 State v. Ryan, 287 Neb. 938, 941-42, 845 N.W.2d 287, 291 (2014), 

disapproved on other grounds, State v. Allen, ante p. 560, ___ N.W.2d ___ 

(2018), quoting Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 130 S. Ct. 

1237, 176 L. Ed. 2d 18 (2010).

58 Neb. Const. art. V, § 9.

59 See Myers v. Hall County, 130 Neb. 13, 263 N.W. 486 (1935).

60 See, Jackson v. Olson, 146 Neb. 885, 22 N.W.2d 124 (1946); Myers, supra

note 59; Barker v. State, 54 Neb. 53, 74 N.W. 427 (1898).

61 Brief for appellant at 15 (emphasis in original).
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common law and equity jurisdiction granted to the district 

court by the constitution.62 DHHS has not shown that the APA 

contains any exclusions in this regard.

Section 84-917(1), the APA’s jurisdictional provision, states:

Any person aggrieved by a final decision in a contested 

case, whether such decision is affirmative or negative in 

form, shall be entitled to judicial review under the [APA]. 

Nothing in this section shall be deemed to prevent resort 

to other means of review, redress, or relief provided 

by law.

(Emphasis supplied.) This section indicates that the APA statutes do not limit a district court’s general original jurisdiction. 

Because the constitution vests in the Legislature the power to 

provide jurisdiction to the district court, other than that conferred by the constitution, and the Legislature has granted the 

district court original jurisdiction in all matters except where 

otherwise provided, there is no basis for this court to conclude 

that a district court lacks the authority to consider a § 1983 

claim in conjunction with an APA claim.

We conclude that the district court had the authority to consider Webb’s § 1983 claim and subsequently award attorney 

fees under § 1988 pursuant to its general original jurisdiction; 

that the district court was not required to rely on authorization from the APA in order to discharge its duties as a court of 

general original jurisdiction; and that the APA, as written, does 

not limit a court’s general original jurisdiction.

Even if we had the authority to adopt DHHS’ position, we 

are not persuaded by the policy concerns DHHS has articulated. DHHS argues that Webb should be required to file two 

separate lawsuits, because his claims (1) are evaluated based 

on different evidence, (2) apply to different parties, and (3) 

are reviewed under different evidentiary standards. Though 

the Legislature could fashion a scheme with these concerns 

in mind, these arguments are unconvincing under the present 

62 In re Estate of Steppuhn, 221 Neb. 329, 377 N.W.2d 83 (1985).
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structure and do not do justice to an experienced district court’s 

ability to engage in separate and independent analyses.

DHHS’ arguments presume the district court performed only 

a singular analysis in resolving Webb’s two claims, but that 

is not an accurate reflection of the district court’s order. It is 

true that different rules apply to each claim, and the district 

court recognized this in its evaluation of each claim. It does 

not appear that the court’s analysis of each claim would have 

been any different had Webb been required to file a separate 

lawsuit. Indeed, none of DHHS’ policy arguments are based on 

the facts of this case.

DHHS argues that APA appeals are limited to the “record 

of the agency”63 and that the State might want to put on additional evidence to resist the § 1983 claim. Because the claims 

are evaluated separately, nothing prevented DHHS from utilizing all of the tools available under the rules of civil procedure 

in order to adduce evidence outside of the agency record to 

defend against § 1983 liability, including completion of discovery, availing itself of other pretrial motions, and proceeding 

to trial. However, the only exhibits offered at the hearing on 

Webb’s motion for summary judgment other than the agency 

record were a copy of federal Medicaid regulations and the 

federal child welfare policy manual. DHHS joined in the 

request to have the district court consider these exhibits for 

purposes of the summary judgment motion.

This case provides an example that the evidence supporting an APA claim and a § 1983 claim are not necessarily 

contradictory. Here, the facts for both claims were identical. 

The only issue in dispute was a question of law as to whether 

Webb was in foster care. Once the court found in Webb’s favor 

on that issue, it followed that Webb prevailed on both of his 

claims, because a denial of Medicaid benefits is a deprivation 

of a federal statutory right. Had the court found in DHHS’ 

favor on the legal issue, DHHS would have prevailed on both 

63 § 84-917(5)(a).
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claims. But DHHS does not challenge the court’s determination that Webb had a meritorious APA claim based on the 

definition of “foster care” within the meaning of the bridge to 

independence program, and does not argue that the court erred 

in its decision that no genuine issue of material fact existed 

with respect to Webb’s motion for summary judgment on his 

§ 1983 claim.

Where a party is confronted with a multiclaim suit that is 

unmanageable, that party can raise those concerns through 

a motion to bifurcate the claims. The trial court also has the 

inherent power to consolidate for purposes of trial in order to 

expedite the reception of evidence and eliminate the multiplicity of hearings and trials.64 Whether claims should be joined for 

purposes of trial is within the discretion of the district court.65

Bifurcation of a trial may be appropriate where separate proceedings will do justice, avoid prejudice, and further the convenience of the parties and the court.66

[13] We have said that an APA proceeding in district court 

for review of a decision by an administrative agency is not an 

“‘appeal’” in the strict sense of the term, meaning “‘the power 

and authority conferred upon a superior court to reexamine 

and redetermine causes tried in inferior courts,’” but, rather, is 

“‘the institution of a suit to obtain judicial-branch review of a 

nonjudicial-branch decision.’”67 In at least one case, we have 

stated that the standard governing motions for a separate trial in 

criminal cases—that such motions are addressed to the discretion of the trial court and rulings on such motions will not be 

reversed unless there is an abuse of discretion—should also be 

64 Jordan v. LSF8 Master Participation Trust, 300 Neb. 523, 915 N.W.2d 399 

(2018).

65 Eicher v. Mid America Fin. Invest. Corp., 270 Neb. 370, 702 N.W.2d 792 

(2005).

66 Connelly v. City of Omaha, 278 Neb. 311, 769 N.W.2d 394 (2009).

67 Kozal, supra note 46, 297 at 945, 902 N.W.2d at 153, citing Glass v. 

Nebraska Dept. of Motor Vehicles, 248 Neb. 501, 536 N.W.2d 344 (1995).
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applied to appeals from administrative agency decisions.68 Here, 

DHHS did not move to bifurcate the claims and does not argue 

the court abused its discretion in consolidating its evaluation of 

Webb’s claims.

CONCLUSION

The district court’s jurisdiction here over the § 1983 claim 

flows from the Legislature’s grant of general jurisdiction to 

that court, over and above the district court’s jurisdiction conferred by the constitution. Thus, it falls to the Legislature, and 

not to this court, to exclude a § 1983 claim from the district 

court’s purview in conjunction with an APA claim. We conclude that the APA does not limit the district court’s original 

jurisdiction and that the district court does not lack the subject 

matter jurisdiction to consider an APA claim and a § 1983 

claim in the same lawsuit.

Affirmed

68 See Olson v. City of Omaha, 232 Neb. 428, 441 N.W.2d 149 (1989).