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Estate of Marilyn Marie Conners v. O'Connor

argued submitted san francisco california: May 11, 1993.


Appeal from the United States District Court for the Northern District of California. D.C. No. CV-86-01898-FMS. Fern M. Smith, District Judge, Presiding.

Before: James R. Browning and William C. Canby, Jr., Circuit Judges, and Robert J. Kelleher,*fn* District Judge. Opinion by Judge Canby.

Author: Canby

CANBY, Circuit Judge:

These appeals present the question whether 28 U.S.C. § 636(b)(1)(A) empowers a federal magistrate Judge to enter a final order on a post-judgment motion for attorney's fees. We hold that it does not.*fn1


Following a jury verdict in their favor in a civil rights action under 42 U.S.C. § 1983, the plaintiffs filed a motion for an award of attorney's fees and costs pursuant to 42 U.S.C. § 1988. The district court ordered the motion referred to a magistrate Judge; the court's order did not specify the subparagraph of 28 U.S.C. § 636 pursuant to which the reference was made. The magistrate considered the motion and issued findings of fact and Conclusions of law, which stated in part:

A motion for an award of attorneys' fees and costs is not dispositive of a claim or defense of a party, nor is it a motion which may be referred to a Magistrate Judge only for a report and recommendation. Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A) and (B). Accordingly, the undersigned determines and disposes of the motion herein, subject to reconsideration by the District Judge if the order is clearly erroneous. Id. ; N.D. Cal. R. 410-2(a).

The magistrate entered an order awarding attorney's fees and costs to the plaintiffs in the amount of $340,323.94. The defendants filed a timely motion for reconsideration of the magistrate's order. See N.D. Cal. Local R. 410-2(a) (a party has ten days to file a motion for reconsideration by the district Judge of an order entered by a magistrate Judge under 28 U.S.C. § 636(b)(1)(A)). Because the district court did not act within thirty days on the motion for reconsideration, it was deemed denied. See N.D. Cal. Local R. 410-2(a). The defendants then filed a notice of appeal purporting to appeal the magistrate's order to this court.

The parties subsequently developed doubts about whether the magistrate Judge had the authority to enter a final, appealable order; if she did not, this court would not have jurisdiction under 28 U.S.C. § 1291 to entertain the defendants' appeal. To avoid this potential jurisdictional problem, the parties submitted to the district court a "Joint Application for Clarification of Order Awarding Attorneys' Fees and/or For Judgment Awarding Attorneys' Fees and Costs." Responding to this application, the district Judge stated that:

The Magistrate Judge and this Court both believed [the Magistrate Judge's] findings to be final and appealable, subject to reconsideration by the District Judge only if the order was clearly erroneous. Although timely objections were received by [sic] defendants, the District Court allowed the thirty day time period to run, thereby deeming defendants' Motion for Reconsideration of the Findings to be denied.

Nevertheless, to avoid delaying appellate review of the fee award, the district Judge agreed to review de novo the magistrate Judge's order. Upon conducting this review, the district court reduced the award to $315,433.94. The parties cross-appealed from the district court's judgment.


The plaintiffs contend that the defendants' filing of a notice of appeal from the magistrate's order divested the district court of jurisdiction to review that order. Accordingly, they assert that the district court's order reducing the magistrate's fee award is a nullity. We disagree.

As a general rule, "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." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 74 L. Ed. 2d 225, 103 S. Ct. 400 (1982) (per curiam). This transfer of jurisdiction from the district court to the court of appeals is not effected, however, if a litigant files a notice of appeal from an unappealable order. See id. (citing Ruby v. Secretary of the Navy, 365 F.2d 385, 389 (9th Cir. 1966) (en banc), cert. denied, 386 U.S. 1011, 18 L. Ed. 2d 442, 87 S. Ct. 1358 (1967)); United States v. Garner, 663 F.2d 834, 838 (9th Cir. 1981), cert. denied, 456 U.S. 905, 72 L. ...

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