treating as an indicative ruling the district court’s statement that it would determine whether a conflict of interest existed if the case were remanded, when a notice of appeal divested the district court’s jurisdiction
How later courts described this case
- treating as an indicative ruling the district court’s statement that it would determine whether a conflict of interest existed if the case were remanded, when a notice of appeal divested the district court’s jurisdiction
- “A timely notice of appeal divests the district court’s jurisdiction. . . .”
Written by the judges who cited it.
The opinion
Case: 15-31119 Document: 00513667514 Page: 1 Date Filed: 09/07/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 7, 2016
No. 15-31119
Lyle W. Cayce
Clerk
M. C. MOORE, as father and next friend to minors Joyce Marie Moore, Jerry
Moore, and Thelma Louise Moore; HENRY SMITH, as father and next friend
to minors Bennie Smith, Charles Edward Smith, Shirley Ann Smith, and
Earline Smith,
Plaintiffs - Appellees
v.
TANGIPAHOA PARISH SCHOOL BOARD, a corporation,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
Before JOLLY, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:
The district court entered an initial injunction against Tangipahoa
Parish School Board in 1967 soon after this desegregation suit was filed. In
2008, the district court granted the parties’ joint motion to create the position
of Chief Desegregation Implementation Officer (“CDIO”) to spearhead the
Board’s implementation of the court’s remedial orders.
In 2015, a dispute arose concerning the Board’s selection of the newest
CDIO. In accord with its former practice, the Board selected a candidate,
Lawrence Thompson, with a master’s degree and educational experience. The
plaintiffs claimed that a local minister, Andrew Jackson, would be a better
Case: 15-31119 Document: 00513667514 Page: 2 Date Filed: 09/07/2016
No. 15-31119
choice. The Board moved in the district court for (1) approval of its candidate
as CDIO, (2) elimination of the CDIO position, or (3) revision of the CDIO job
description. The district court denied the motions and appointed the plaintiffs’
candidate as CDIO. The Board then filed a timely notice of appeal. Later, the
Board filed a motion in the district court under Federal Rule of Civil Procedure
60(b), seeking relief from the order appointing Jackson as CDIO. The Board
alleged it recently discovered Jackson has a conflict of interest with the named
plaintiffs that affects his suitability for the CDIO position.
A timely notice of appeal divests the district court’s jurisdiction, meaning
it cannot grant a party’s Rule 60(b) motion unless this court remands. Lopez
Dominguez v. Gulf Coast Marine & Assocs., Inc., 607 F.3d 1066, 1073–74 (5th
Cir. 2010). Rule 12.1 of the Federal Rules of Appellate Procedure and Rule
62.1 of the Federal Rules of Civil Procedure permit a district court to state that
a motion filed while a case is on appeal and which it cannot grant raises a
“substantial issue.” The district court so stated and indicated that if the case
were remanded, it would determine whether a conflict of interest exists.
We REMAND for the limited purpose of allowing the district court to
rule on the matter identified in its indicative order. Should the district court
determine that Andrew Jackson should no longer be the CDIO, this remand
does not authorize the court to make a new appointment. The district court
should also make additional findings to explain its appointment of Mr. Jackson
instead of Mr. Thompson.
After the district court’s entry of a final ruling on the pending motion,
the case should be returned to this panel, which will retain jurisdiction during
the pendency of the limited remand.
2