Free Response to Motion - District Court of Arizona - Arizona

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CHANDLER & UDALL, LLP
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Natman Schaye PCC# 51156, SBN 007095 Attorneys for Defendant Cherie Vigil UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, vs. CHERIE VIGIL, et al., Defendant. NO. CR 04-0874-PHX-RGS RESPONSE TO PROSECUTION MOTION FOR RELIEF FROM APRIL 13, 2006 ORDER

Assigned to: The Hon. Roger G. Strand Cherie Vigil, through counsel, pursuant to 18 U.S.C. §3006A and 28 U.S.C. §2412(d), responds to the prosecution's Motion for Relief from April 13, 2006 Order (Doc. No. 115), with the accompanying memorandum of points and authorities (Doc. No. 116). Ms. Vigil submits that the interests of justice require that this Court summarily deny the motion and, because the prosecution's position is not substantially justified, award Ms. Vigil's reasonable fees and costs expended in responding to the motion. .... .... ....

Case 2:04-cr-00874-RGS

Document 117

Filed 09/05/2006

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RESPECTFULLY SUBMITTED this fifth day of September 2006. CHANDLER & UDALL, LLP

By s/Natman Schaye Natman Schaye Attorneys for Defendant Cherie Vigil

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MEMORANDUM OF POINTS AND AUTHORITIES I. Introduction The prosecution's memorandum, at 1-2, correctly recites the relevant facts. In short: A. The prosecution voluntarily dismissed its case against Cherie Vigil without prejudice. (Doc. Nos. 67, 69). B. Ms. Vigil subsequently convinced the Court, over prosecution objection, to order the case dismissed with prejudice. (Doc. Nos. 107, 110). C. Ms. Vigil filed, within thirty days of the order dismissing the case with prejudice, a motion seeking recovery of her attorney's fees and costs under the Hyde Amendment. (Doc. No. 112). D. Due to its own error, the prosecution did not receive a copy of that motion. E. This Court granted the motion.1 (Doc. 113). The prosecution now seeks to have the order awarding fees and costs set aside2. The prosecution, undoubtedly recognizing that a motion based on any other grounds would be summarily rejected as untimely, claims that the challenged order is "void". (Doc. 116 at 7). The motion, at 2, relies on Rule 60(b)(4) of Civil Procedure, which is not subject to timeliness requirements. Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir. 1994). The prosecution's motion is based on the claim that the motion for fees and costs was untimely filed, thus depriving the Court of jurisdiction and rendering the order void. This claim is dependent on the presumption that the thirty day period in which a motion for fees and costs must be filed runs from the date of the order dismissing the case without

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The prosecution received actual notice on June 14, 2006, when Sharon Hardin, paralegal to counsel undersigned, called Assistant United States Attorney Mary Pfister to inquire as to when the government would comply with the Court's order awarding fees and costs. The prosecution, at 7, claims that counsel undersigned "misled the Court into entering" the order at issue. This claim is both unsubstantiated and false.
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prejudice. The prosecution's motion must fail for two reasons. First, the untimely filing of a motion for fees and costs does not divest the Court of jurisdiction. Second, the deadline for the motion was triggered by the order dismissing the case with prejudice and the motion was therefore timely filed. II. Legal Analysis A. The Deadline for Filing the Motion is not Jurisdictional The Equal Access to Justice Act ("EAJA"), 28 U.S.C. §2412(d)(1)(B), incorporated by reference in the Hyde Amendment, requires that a motion for fees and costs be filed "within thirty days of final judgment . . ." The prosecution, at 4, argues - incorrectly3 - that the thirty days began to run on the date that the Court ordered the case dismissed without prejudice. The prosecution seeks to convince this Court that, because the motion was not timely filed, the order granting fees and costs is void under Rule 60(b)(4) of Civil Procedure. Even assuming, for the moment, that the motion was untimely, this fact would not render the order void. The Ninth Circuit holds, "A final judgment is 'void' for purposes of Rule 60(b)(4) only if the court lacked jurisdiction, either as to the subject matter of the dispute or over the parties to be bound, or acted in a manner inconsistent with due process of law." United States v. Berke, 170 F.3d 882, 883 (9th Cir. 1999). Further, "'A judgment is not void merely because it is erroneous.'" Id., quoting In re Ctr. Wholesale, Inc., 759 F.2d 1440, 1448 (9th Cir. 1985). The prosecution claims that the motion's untimeliness deprived the Court of jurisdiction. This claim is based on case law that has been overruled or is irrelevant. The prosecution's memorandum, at 4, cites Briseno v. Ashcroft, 291 F.3d 377, 379 (5th Cir. 2002), and Bryan v. Office of Personnel Management, 165 F.3d 1315, 1321 (10th Cir.

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See §B, below.
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1999), both of which stated that a movant's failure to timely file a motion for fees and costs deprived the court of jurisdiction4. The Supreme Court has, as discussed below, rejected that conclusion. The prosecution, at 6, looks to United States v. Sumner, 226 F.3d 1005, 1008-1009 (9th Cir. 1995), a case in which the defendant brought an untimely motion under the Youth Corrections Act to have his record expunged. The Court of Appeals, recognizing that the courts' authority to adjudicate claims must be granted by Congress, held that the Act did not permit the granting of the untimely motion and the Court therefore lacked jurisdiction to do so. Id. at 1009-1010. The Supreme Court has made clear that such jurisdiction is not lacking under the EAJA. In Scarborough v. Principi, 541 U.S. 401, 408 (2004), a case overlooked by the prosecution, a claimant for disability benefits filed an EAJA motion for fees and costs. The motion was timely, but an amendment to include a necessary averment in the motion was made after the deadline for filing expired. Id. at 409-410. The Supreme Court accepted review to determine whether the amended motion was timely. Id. at 412. The Court began its analysis by deciding the precise question presented here: whether the untimeliness of an EAJA motion for fees and costs divests a court of subject matter jurisdiction. The Court made it very clear that such tardiness does not eliminate jurisdiction, "We clarify, first, that the question before us - whether Scarborough is time barred by §2412(d)(1)(B) from gaining the fee award authorized by §2412(d)(1)(A) - does not concern the federal courts' 'subject-matter jurisdiction.'" Id. at 413. The Court explained: "Courts, including this Court . . . have more than occasionally The prosecution also cites United States v. Milloy, 75 F.Supp.2d 1283 (D. N.M. 1999), and United States v. Gardner, 23 F.Supp.2d 1283 (N.D. Okla. 1998). In Milloy, the Court dismissed the case without prejudice in an earlier order which was not explained in the decision. Gardner is discussed at pages 7-8, below.
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[mis]used the term 'jurisdictional' to describe emphatic time prescriptions in [claim processing] rules . . . . Clarity would be facilitated if courts and litigants used the label 'jurisdictional' not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court's adjudicatory authority." Id. at 413-414, quoting Kontrick v. Ryan, 540 U.S. 443, 454-455 (2004). The untimeliness of a motion under §2412(d)(1)(B) does not deprive the court of jurisdiction because "the section relates only to postjudgment proceedings auxiliary to cases already within that court's adjudicatory authority." Id. at 414. The Court had jurisdiction to grant Ms. Vigil her fees and costs regardless of whether her motion was timely filed. The prosecution's claim that the order is void must fail. B. The Motion was Timely Filed Pursuant to the Hyde Amendment, and its incorporation of 28 U.S.C. §2412, a criminal defendant who successfully defends against a prosecution that is vexatious, frivolous or in bad faith may obtain fees and costs by filing a motion within thirty days of a judgment that is "final and not appealable". 28 U.S.C. §2412(d)(2)(G). The prosecution, at 4, claims that the Court's order dismissing the case without prejudice was "final and not appealable," and therefore triggered the thirty day limitations period. According to the prosecution, the order dismissing the case with prejudice was of no moment to this issue. In essence, the prosecution asks the Court to conclude that an order dismissing a case without prejudice is always "final". The Ninth Circuit has directly contradicted the prosecution's claim. First, the Court recognized, "Although there are exceptions to the rule, dismissals with prejudice generally constitute final orders, while dismissals without prejudice generally do not." Wakefield v. Thompson, 177 F.3d 1160, 1162 (9th Cir. 1999). The Supreme Court concurs, "The primary meaning of 'dismissal without prejudice', we think, is dismissal without barring the plaintiff from returning later, to the same court, with the same underlying claim." Semtek
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International, Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505 (2001). Courts must examine the underlying circumstances to determine whether a dismissal without prejudice constitutes a final order: The Supreme Court has held that the finality requirement should be given a practical rather than a technical construction. See Gillespie v. United States Steel Corp., 379 U.S. 148, 152 (1964). We have held accordingly that "an order which effectively sends a party out of court is appealable." United States v. Lee, 786 F.2d 951, 956 (9th Cir. 1986). Id. at 11635. The Court has consistently examined the impact of the dismissal order on the particular litigation at issue. American States Insurance Co. v. Dastar Corp., 318 F.3d 881, 884 (9th Cir. 2003)(applying "a pragmatic approach" to determine finality); United States v. Lee, 786 F.2d 951, 955 (9th Cir. 1986)(instructing courts to "focus on the effect of the ruling rather than the label placed on it."). In accord Amazon, Inc. v. Dirt Camp, Inc. 273 F.3d 1271, 1275 (10th Cir. 2001)("Although a dismissal without prejudice is usually not a final decision, where the dismissal finally disposes of the case so that it is not subject to further proceedings in federal court, the dismissal is final and appealable."). This principle was applied in a case on which the prosecution relies, United States v. Gardner, 23 F.Supp.2d 1283 (N.D. Okla. 1998). (Doc. No. 116 at 4). There, some of the counts of the indictment were dismissed with prejudice, and others without. Id. at 1286. Gardner then filed a motion for fees and costs pursuant to the Hyde Amendment. Id. at 1285. Interestingly, the prosecution in that case forwarded the argument that is directly contrary to the prosecution's contention in the present case: the Gardner prosecutor argued that the counts dismissed without prejudice were not final for purposes of the Hyde

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The question of whether a dismissal constitutes a final order has been addressed in a variety of circumstances, such as in Wakefield in which the question was whether an appeal could be taken from the order. However, the courts' determinations of whether a judgment is final has been consistent regardless of the underlying issue.
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Amendment. Id. at 1292. The Court, "under the facts present [t]here," ruled that the order of dismissal without prejudice was a final order. Id. The Court correctly reached that conclusion because the prosecutor "made an express representation that Mr. Gardner [would] not be prosecuted again for the dismissed charges." Id. at 1293. See also United States v. Campbell, 134 F.Supp.2d 1104, 1107 (C.D. Cal. 2001), aff'd, 291 F.3d 1169 (9th Cir. 2002)(citing Gardner with approval). The present case is the other side of the Gardner coin. In dismissing the case without prejudice, the prosecution made no representation that it would not again prosecute Ms. Vigil in this matter. In fact, the prosecution opposed a dismissal with prejudice that would have prevented it from doing so. (Doc. No. 108). See American States Insurance Co. v. Dastar Corp., 318 F.3d at 884 (court will consider events subsequent to dismissal without prejudice in deciding whether dismissal constituted a final order). The prosecution's very purpose in dismissing the case without prejudice was to avoid an order "barring the [prosecution] from returning later, to the same court, with the same underlying claim." Semtek International, Inc. v. Lockheed Martin Corp., 531 U.S. at 505. The very fact that the Court entered a subsequent order dismissing the case with prejudice supports the conclusion that the order dismissing the case without prejudice was not a final order. The Court, in granting fees and costs, correctly found that its order of dismissal with prejudice was the final order. The motion under the Hyde Amendment was therefore timely filed. The prosecution's challenge must be rejected. III. Conclusion The position of the prosecution falls far short of being substantially justified. It is respectfully submitted that the motion be denied and that the government be ordered to pay the attorney's fees and costs expended in answering the motion. .... ....
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RESPECTFULLY SUBMITTED this fifth day of September, 2006. CHANDLER & UDALL, LLP

By s/Natman Schaye Natman Schaye Attorneys for Defendant Cherie Vigil

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TUCSON, ARIZONA 85701-1415

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CERTIFICATE OF SERVICE I hereby certify that on September 5, 2006, I electronically transmitted the attached document to the Clerk's Office using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Howard David Sukenic Office of the United States Attorney 2 Renaissance Square 40 North Central, Suite 1200 Phoenix, Arizona 85004-4408 Mary Beth Pfister Office of the United States Attorney 2 Renaissance Square 40 North Central, Suite 1200 Phoenix, Arizona 85004-4408 Richard G. Patrick Office of the United States Attorney 2 Renaissance Square 40 North Central, Suite 1200 Phoenix, Arizona 85004-4408

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By s/Sharon Hardin

Case 2:04-cr-00874-RGS

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