                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                          FEB 8 2001
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 HERMAN CHEE, SR.; JULIE CHEE,
 Taylor Chee, Herman Chee, Jr., and
 Araidena Chee, by and through their
 parents and general guardian, Herman
 Chee, Sr., and Julie Chee,

           Plaintiffs-Appellants,

 and

 ERIC P. SWENSON; THERESE E.
 YANAN; DONALD J. WINDER;
 WINDER & HASLAM, P.C.,

           Appellants,
 v.                                                     No. 00-4004
 BOARD OF EDUCATION OF THE                         (D.C. No. 94-CV-386)
 SAN JUAN SCHOOL DISTRICT;                               (D. Utah)
 UTAH STATE BOARD OF
 EDUCATION,

           Defendants-Appellees.



                              ORDER AND JUDGMENT        *




       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before BRISCOE, PORFILIO,             Circuit Judges, and   MARTEN , District Judge      **
                                                                                              .



       Plaintiffs appeal the district court’s denial of their motion to reopen and

modify the judgment of voluntary dismissal in order to ensure the record in            Chee

reflected the terms of the settlement agreement, and the denial of their motion for

reconsideration of their application for attorney fees. We dismiss the appeal as

moot and remand with directions to vacate.

       In 1974, a class action was brought against the San Juan County School

District, alleging that the District denied equal educational opportunities to

Native Americans.       See Sinajini v. Bd. of Ed. of San Juan County Sch. Dist.       , 47

F. Supp. 2d 1316, 1318 (D. Utah 1999). The present case was filed by various

members of the class to pursue separate claims regarding special education

against the District.    Sinajini was resolved by consent decree in 1997.        The

consent decree included the      Chee plaintiffs and provided they would voluntarily

dismiss their claims.     Sinajini v. Bd. of Ed. of San Juan County Sch. Dist.     , 964 F.

Supp. 319, 321 (D. Utah 1997). The district court dismissed the          Chee action

without prejudice, pursuant to the parties’ stipulation.

       Counsel in the Chee action, who were also counsel in the         Sinajini action,



        The Honorable J. Thomas Marten, United States District Judge, District
       **

of Kansas, sitting by designation.

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requested attorney fees for their work in      Chee as part of the overall request for

attorney fees in Sinajini . The court denied the request, concluding fees should be

requested in the court that decided       Chee . Counsel then requested attorney fees

from the Chee court. The court denied the request because the           Chee plaintiffs

were not prevailing parties, having voluntarily dismissed         their claims. Counsel

requested that the court reopen the dismissal and include an explanation of the

Sinajini consent decree to make clear that the        Chee plaintiffs were prevailing

parties. The district court denied the motion and the plaintiffs filed this appeal.

       This court filed its decision in     Sinajini on November 30, 2000, concluding

the Sinajini court’s decision not to include the       Chee attorney fees was

“unreasonable.”    Sinajini v. Bd., of Ed. of San Juan County Sch. Dist.        , 233 F.3d

1236, 1240 (10th Cir. 2000). This court stated that “[t]he consent decree that the

court entered judgment on . . . provided for uniform resolution ‘concerning costs

and attorney[] fees in connection with the         Chee and Sinajini litigation and the

pending United States matters.’”      Id. The matter was remanded to the district

court to recalculate attorney fees and the court was ordered “to make a uniform

resolution on the question of attorney’s fees and costs.”        Id.

       Plaintiffs have filed a motion for summary disposition in this appeal        . The

District has filed an objection to the motion, and plaintiffs have filed a reply to

the objection.


                                               3
          An appellate court has, of necessity, the discretion to dismiss an appeal

when a particular controversy has expired.         Battle v. Anderson , 708 F.2d 1523,

1527 (10th Cir. 1983). A case is moot when the relief sought has already been

obtained. See S. Utah Wilderness Alliance v. Smith         , 110 F.3d 724, 727 (10th

Cir. 1997).

          On appeal, plaintiffs ask this court to instruct the district court to

determine appropriate attorney fees for work performed in         Chee . As this court

has already ordered a district court to determine the appropriate attorney fees in

Chee , there is nothing more to be done. The fact that plaintiffs have filed a

motion for summary disposition demonstrates they have received their requested

relief.

          Plaintiffs’ motion for summary disposition is GRANTED. We DISMISS

this appeal as moot. This case is REMANDED to the district court with

directions to vacate the underlying judgment.



                                                   Entered for the Court

                                                   Mary Beck Briscoe
                                                   Circuit Judge




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