Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/08/2019 08:09 AM CST




                                                        - 810 -
                                  Nebraska Supreme Court A dvance Sheets
                                          301 Nebraska R eports
                            WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                                           Cite as 301 Neb. 810




                            A zar Webb, appellee, v. Nebraska Department
                                   of H ealth and Human Services
                                          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 pre­
                     sents 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 appli-
                     cation 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.
                                     - 811 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
           WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                          Cite as 301 Neb. 810

10.	 Courts: Jurisdiction: Appeal and Error. The matter of acquiring juris-
     diction 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, jurisdic-
     tion 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 nonjudicial-
     branch decision.

   Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Affirmed.
   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, Stacy, Funke,
Papik, and Freudenberg JJ.
   Funke, J.
   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).
                              - 812 -
           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
       WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                      Cite as 301 Neb. 810

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 reinstate-
ment 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 sub-
mit 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 attor-
ney fees.
   We conclude that both the court’s judgment on the mer-
its 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 dis-
trict 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.
                            - 813 -
          Nebraska Supreme Court A dvance Sheets
                  301 Nebraska R eports
       WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                      Cite as 301 Neb. 810

                        BACKGROUND
   Webb was a participant in the bridge to independence pro-
gram, 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 partici-
pating 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 respon-
sibility 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 indepen-
dence program constituted “foster care” under the responsi-
bility 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
                                    - 814 -
               Nebraska Supreme Court A dvance Sheets
                       301 Nebraska R eports
           WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                          Cite as 301 Neb. 810

summary judgment on the § 1983 claim. The court held a hear-
ing 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 super-
vised 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 cov-
erage 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. Thiboutot 3 for the proposition that “a claim under
§ 1983 may be brought in a state court in the procedural con-
text of a state court’s reviewing the actions of a state adminis-
trative 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.
                                     - 815 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
            WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                           Cite as 301 Neb. 810

   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 ter-
mination of Webb’s Medicaid eligibility. The court then sus-
tained 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 appel-
late courts of this State.5

 5	
      See Neb. Rev. Stat. § 24-1106 (Supp. 2017).
                                    - 816 -
               Nebraska Supreme Court A dvance Sheets
                       301 Nebraska R eports
           WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                          Cite as 301 Neb. 810

                 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 judi-
cial 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 interpreta-
tion 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.
                                    - 817 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
           WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                          Cite as 301 Neb. 810

   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 A ppellate Jurisdiction
                   Over M ay 10, 2017, Order
   [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 con-
ferred 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 appel-
late 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).
                                     - 818 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
           WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                          Cite as 301 Neb. 810

jurisdiction must be specifically provided by the Legislature.16
An appellate court acquires no jurisdiction unless the appel-
lant 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 direc-
tion 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).
                                - 819 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
            WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                           Cite as 301 Neb. 810

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 juris-
diction, 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 sat-
isfy the statutory requirements to obtain appellate review of
that order.
   The court’s May 10, 2017, order meets the statutory defini-
tion 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 deter-
mine 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 encom-
passed 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).
                                     - 820 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
           WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                          Cite as 301 Neb. 810

We have explained that attorney fees are generally treated as
an element of court costs and that an award of costs in a judg-
ment 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 fed-
eral 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.
                                    - 821 -
               Nebraska Supreme Court A dvance Sheets
                       301 Nebraska R eports
           WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                          Cite as 301 Neb. 810

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).
                                    - 822 -
               Nebraska Supreme Court A dvance Sheets
                       301 Nebraska R eports
           WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                          Cite as 301 Neb. 810

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 there-
fore, 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 sepa-
rate 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.
                                     - 823 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
            WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                           Cite as 301 Neb. 810

not change the outcome on the merits regarding DHHS’ viola-
tion 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 quan-
tifying attorney fees is not final under federal law.42 A find-
ing that a party is liable for attorney fees is an interlocutory
determination,43 analogous to a summary judgment determina-
tion 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 com-
ponents 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 inde-
pendent 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).
                                 - 824 -
               Nebraska Supreme Court A dvance Sheets
                       301 Nebraska R eports
           WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                          Cite as 301 Neb. 810

indeed a technical matter and one over which courts have
no discretion.45
   However, DHHS has also asserted a challenge to the dis-
trict 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 pur-
suant 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 H ad Subject M atter Jurisdiction
                      Over § 1983 Claim
   DHHS contends that the court lacked subject matter jurisdic-
tion 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 adminis-
trative 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).
                                   - 825 -
               Nebraska Supreme Court A dvance Sheets
                       301 Nebraska R eports
           WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                          Cite as 301 Neb. 810

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 dis-
trict court’s reliance on Maldonado v. Nebraska Dept. of Pub.
Welfare 47 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.
                                     - 826 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
            WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                           Cite as 301 Neb. 810

We held that based on the U.S. Supreme Court’s decision in
Maine v. Thiboutot 49 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 proce-
dural 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 lan-
guage of § 1983, which provides in pertinent part:
         “Every person who, under color of any statute . . . sub-
      jects, 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 proceed-
      ing 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 nei-
ther 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.
                                         - 827 -
                  Nebraska Supreme Court A dvance Sheets
                          301 Nebraska R eports
             WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                            Cite as 301 Neb. 810

states a conclusion without analyzing the jurisdictional frame-
work 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 admin-
istrative 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 con-
cerned the issue of whether an appeal of a contested case
under the APA had been perfected in order to achieve judi-
cial 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 dis-
trict 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 pro-
ceeding. 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 prac-
tice 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.
                                      - 828 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
            WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                           Cite as 301 Neb. 810

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 jurisdic-
tion)” 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 pro-
vided.” (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 lan-
guage 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 jurisdiction-
limiting 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).
                                     - 829 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
           WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                          Cite as 301 Neb. 810

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 stat-
utes 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 con-
ferred 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 con-
sider 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 authoriza-
tion 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 articu-
lated. 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).
                                - 830 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
            WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                           Cite as 301 Neb. 810

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 addi-
tional evidence to resist the § 1983 claim. Because the claims
are evaluated separately, nothing prevented DHHS from utiliz-
ing 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 dis-
covery, 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 support-
ing 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).
                                     - 831 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
           WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                          Cite as 301 Neb. 810

claims. But DHHS does not challenge the court’s determina-
tion 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 multiplic-
ity 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 pro-
ceedings will do justice, avoid prejudice, and further the con-
venience 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 discre-
tion 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).
                                    - 832 -
               Nebraska Supreme Court A dvance Sheets
                       301 Nebraska R eports
           WEBB v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                          Cite as 301 Neb. 810

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 con-
ferred 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 con-
clude 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.
                                                      A ffirmed.

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