Free Motion to Stay - District Court of Colorado - Colorado

Case 1:04-cv-00762-RPM

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Filed 01/12/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00762-RPM-BNB J. DAVID EVANS, and BERNITA M. EVANS, Plaintiffs, vs. ANN M. VENEMAN, Secretary, United States Department of Agriculture, Defendant.

DEFENDANT'S MOTION FOR STAY PENDING APPEAL

The Defendant, by undersigned counsel, pursuant to Fed. R. Civ. P. 62(e), moves for a stay of the judgment pending appeal. In support, the Defendant states as follows: 1. On November 1, 2005, the court entered judgment against Defendant. The judgment ordered Defendant to cancel and mark as "Paid in Full" the Promissory Note dated December 9, 1977, and to return the original note to Plaintiffs. It further ordered the Defendant to cancel and mark as "Paid in Full" the write-down Promissory Note dated March 21, 1989, and to return the original to Plaintiffs. The judgment further ordered that the Shared Appreciation Agreement dated March 21, 1989, between Plaintiffs and the Farm Service Agency be deemed satisfied and paid in full, and that the Real Estate Deed of Trust dated December 9, 1977 be released.

Case 1:04-cv-00762-RPM

Document 44

Filed 01/12/2006

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2. On December 30, 2005, Defendant filed a Notice of Appeal of the judgment. 3. The factors to be considered by a court in determining whether to grant a stay pending appeal are: (1) the likelihood of success on appeal; (2) the threat of irreparable harm if the stay is not granted; (3) the absence of harm to the opposing parties if the stay is granted; and (4) any risk of harm to the public interest. O Centro Espirita Beneficiente Uniao De Vegetal v. Ashcroft, 314 F.3d 463, 465-66 (10 th Cir. 2002); United States v. Various Tracts of Land in Muskogee and Cherokee Counties, 74 F.3d 197, 198 (10 th Cir. 1996). 4. There is a likelihood that Defendant will prevail on appeal because Plaintiffs are not contesting a final agency decision. The APA grants jurisdiction for district courts to review "final agency action." See 5 U.S.C. § 704. Likewise, 7 U.S.C. § 6999 provides that final decisions of the National Appeals Division can be reviewed. Here, Plaintiffs are contesting interim decisions of the Farm Service Agency to obtain a new appraisal, and not release the deed of trust. Plaintiffs are not contesting a final decision by the NAD that a specific amount of shared appreciation is due. Since no such final agency decision has been made, Plaintiffs' claims are not ripe, and the Court lacks jurisdiction under the APA. Coalition for Sustainable Resources, Inc. v. United States Forest Service, 259 F.3d 1244, 1249-53.

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Case 1:04-cv-00762-RPM

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5. Pursuant to 5 U.S.C. § 706(1), a district court may "compel agency action unlawfully withheld or unreasonably delayed." The "agency actions" covered by this section are those discrete actions defined by 5 U.S.C. § 551(13) ­ "agency rule, order, license, sanction [or] relief." Additionally, the only "agency action" that can be compelled is agency action that is legally required. Thus, the APA only empowers a district court to compel an agency to perform a ministerial or non-discretionary act. Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 60-65 (2004). Plaintiffs did not seek to compel the Defendant to take ministerial or non-discretionary agency action. Therefore, there is a likelihood that Defendant will prevail on appeal on this issue. 6. There is a threat that Defendant will suffer irreparable harm if a stay is not granted because the agency's lien on the property will be extinguished. Thus, there is a threat that even if Defendant wins the appeal and the lien and Shared Appreciation Agreement are reinstated, Defendant may not be able to collect any shared appreciation that is ultimately determined to be due. 7. Granting the stay will not result in substantial harm to Plaintiffs. The stay will simply maintain the status quo. Under the status quo, Plaintiffs are not required to make any payments on the loan, and no shared appreciation is owed at this time.

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Case 1:04-cv-00762-RPM

Document 44

Filed 01/12/2006

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8. Not granting the stay will adversely affect the public's interest in having the government collect any amount determined to be owed pursuant to the Shared Appreciation Agreement. 9. Pursuant to D.C.COLO.LCivR. 7.1A, Plaintiffs' attorney has been contacted regarding this motion, and Mr. Dudgeon indicated that he objects. Dated this 12 th day of January, 2006. Respectfully submitted, WILLIAM J. LEONE United States Attorney s/William G. Pharo William G. Pharo Assistant United States Attorney 1225 Seventeenth St., Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Fax: (303) 454-0404 E-mail: [email protected] Attorney for Defendant

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Case 1:04-cv-00762-RPM

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Filed 01/12/2006

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CERTIFICATE OF MAILING I hereby certify that on this 12th day of January, 2006, I electronically filed the foregoing DEFENDANT'S MOTION FOR STAY PENDING APPEAL with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: John M. Dudgeon [email protected] I hereby certify that on this 12 th day of January, 2006, I mailed or served the foregoing DEFENDANT'S MOTION FOR STAY PENDING APPEAL to the following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the nonparticipant's name: Duane Ross via U.S. Mail Office of General Counsel United States Department of Agriculture P.O. Box 25005 Denver, CO 80225-0005 s/William G. Pharo William G. Pharo Assistant United States Attorney United States Attorney's Office 1225 Seventeenth St., Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Fax: (303) 454-0404 Attorney for Defendant

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