Free Memorandum - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona RICHARD G. PATRICK Assistant U.S. Attorney Arizona State Bar No. 5148 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 Facsimile: (602) 514-7760 E-Mail: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, et al. CR-04-00874-PHX-RGS-ALL Plaintiffs, v. Veronica Luz Cabrera, et al. Defendants. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNITED STATES' MOTION FOR RELIEF FROM APRIL 13, 2006 ORDER

Introduction For purposes of this motion, the facts are briefly stated. Cherie Vigil ("Vigil") was

20 indicted in this case on August 18, 2004. (Docket #1). The government moved to dismiss all 21 counts of the indictment as to Vigil, without prejudice, by a motion filed February 10, 2005. 22 (Docket #67). The Court granted the government's motion to dismiss as to Vigil by an Order 23 filed February 17, 2005. (Docket #69). 24 Almost a year later, Vigil filed a motion to dismiss with prejudice on January 19, 2006. 25 (Docket #107). The government opposed the motion. (Docket #108). By an Order filed 26 February 10, 2006, the Court granted Vigil's motion to dismiss with prejudice. (Docket #110). 27 Thereafter, on March 13, 2006, Vigil filed a motion for attorney's fees under the 18 U.S.C. 28 § 3006A, Statutory Notes. (Docket #112). The Court granted that motion by an Order dated

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1 April 13, 2006.1 (Docket #113). For the reasons that follow, the Court should grant the United 2 States' relief from the April 13, 2006 order pursuant to Rule 60(b)(4) and/or (b)(1).2 3 4 5 6 7 8 9 The statutory reference to the Equal Access To Justice Act ("EAJA"), 28 U.S.C. § 2412, means 10 that the Hyde Amendment "specifically incorporates the filing requirements" of EAJA. United 11 12 time in which a request for attorneys' fees and costs must be made to the district court and the 13 steps a litigant must take in making such a request. See 28 U.S.C. § 2412(d)(1)(B). The time 14 requirement is "within thirty days of final judgment", final judgment being statutorily defined 15 as "a judgment that is final and not appealable". Section 2412(d)(2)(G). The steps required for 16 a filing include the "itemized statement" requirement of section 2412(d)(2)(B). United States 17 v. Knott, 106 F. Supp. 2d 174, 177-78 (D. Mass. 2000). Within the Ninth Circuit, the thirty-day 18 19 timing requirement is met, required information not submitted in the timely motion can be 20 21 The government did not respond in opposition to that motion because, unfortunately, 22 it did not know of the existence of the motion. Due to AUSA Mary Beth Pfister's maternity leave, AUSA Howard Sukenic filed a Notice of Addition of Co-Counsel on August 5, 2005 23 [shortly after the Court's conversion to ECF filing] (Docket #91). In error, that filing eliminated Ms. Pfister from the ECF system as counsel of record for the government and failed to add Mr. 24 Sukenic as counsel of record. After August 5, 2005, the government did respond to certain events in the case based upon documents/pleadings mailed to it (e.g. Vigil's January 19, 2006 25 motion). However, when Vigil's Hyde Amendment motion was filed via ECF, the government did not know it and, hence, did not oppose the motion. The Court granted the motion thirty days 26 later (Docket #113) when it saw no opposition on the record by the government. 27 Motions for attorney's fees under 18 U.S.C. § 3006A, Statutory Notes, are civil, not criminal matters. United States v. Braunstein, 281 F.3d 982, 992-93 (9th Cir. 2002). Hence, this 28 motion is made pursuant to Rule 60(b), Fed. R. Civ. P. 2
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Law and Argument The Hyde Amendment, 18 U.S.C. § 3006A, Statutory Notes, states, in relevant part, that [T]he court, in any criminal case ... may award to a prevailing party, other than the United States, a reasonable attorney's fee and other litigation expenses, where the court finds that the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust. Such awards shall be granted pursuant to the procedures and limitations (but not the burden of proof) provided for an award under section 2412 of title 28, United States Code.

States v. Hristov, 396 F.3d 1944, 1046 (9th Cir. 2005). Those filing requirements concern the

timing rule is strictly applied. Arulampalam v. Gonzales, 399 F.2d 1087 (9th Cir. 2005). If the

1 provided by an amended filing outside the thirty-day requirement. United States v. Hristov, 2 supra. 3 The section 2412(d)(2)(G) definition of final judgment is an "unusual definition".

4 Melkonyan v. Sullivan, 501 U.S. 89, 95 (1991). In general, it means that the EAJA filing period 5 begins after the time for taking an appeal from the district court judgment has expired. Id. 6 For purposes of Vigil's Hyde Amendment claim, the section 2412(d)(2)(G) requirements

7 of "final" and "not appealable" merit further analysis. On February 17, 2005, the indictment 8 against Vigil was dismissed without prejudice on motion of the government and without 9 objection by Vigil. (Docket #69). As to Vigil, that dismissal order, even a dismissal without 10 prejudice, was final.3 At that point, she had received the relief to which she was entitled and, 11 as to her, there ceased to be a case or controversy before the Court. As far as the Court was 12 concerned, the case as to Vigil was ended. De Tie v. Orange County, 152 F.3d 1109, 1111 13 (9th Cir. 1998); United States v. Lee, 786 F.2d 951, 956 (9th Cir. 1986); Matter of Special April 14 1977 Grand Jury, 587 F.2d 889, 892 n. 1 (7th Cir. 1978); accord United States v. Wallace & 15 Tiernan Co., 336 U.S. 793, 794 n. 1 (1949); Amazon Inc. v. Dirt Camp, Inc., 273 F.3d 1272, 16 1275 (10th Cir. 2001). 17 The February 2005 dismissal without prejudice was also not appealable. The government

18 procured the dismissal; accordingly, it could not appeal. Ms. Vigil was not aggrieved by the 19 dismissal; hence she could not appeal. Parr v. United States, 351 U.S. 513, 516-18 (1956); 20 Lewis v. Untied States, 216 U.S. 611, 612 (1910); United States v. Lanham, 631 F.2d 356, 358 21 (4th Cir. 19980); see United States v. Hoyland, 914 F.2d 1125, 1128 (9th Cir. 1990) (adopting the 22 Parr rationale). Because both the government and Vigil were successful - the prosecution 23 obtaining the order it sought and Vigil having the indictment dismissed as to her - neither had 24 25 26 27 That the case, as to Vigil, was ended by an order and not a judgment is of no 28 consequence. Shalala v. Schaefer, 509 U.S. 292, 296 (1993). 3
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1 an appealable interest and, hence, the February 2005 dismissal order was not appealable.4 2 United States v. Shelly, 218 F.2d 157, 158 (2d Cir. 1954). 3 Because the Court's February 2005 dismissal order was both final and not appealable,

4 Vigil had a thirty-day window thereafter to submit her Hyde Amendment motion. She did not 5 file her motion until March 13, 2006, which was almost a year late. Her motion was thus 6 untimely and, based upon the Ninth Circuit's strict application of the thirty-day rule, should have 7 been denied without addressing the merits of the motion.5 See Briseno v. Ashcroft, 291 F.3d 377 8 (5th Cir. 2002) (application for EAJA fees filed more than 30 days after order granting voluntary 9 dismissal of civil action was untimely); Bryan v. Office of Personnel Management, 165 F.3d 10 1315 (10th Cir. 1999) (same); see also United States v. Milloy, 75 F. Supp. 2d 1276 (D. N.M. 11 1999) (dismissal without prejudice by government was final judgment for purposes of Hyde 12 Amendment); United States v. Gardner, 23 F. Supp. 2d 1283 (N.D. Okla. 1998) (same). 13 Vigil will, of course, point to her January 19, 2006 motion to dismiss the indictment with

14 prejudice (Docket #107) and the Court's subsequent February 10, 2006 order granting that 15 motion. (Docket #110). Based upon the Court's February 10, 2006 order, she will assert that 16 her March 13, 2006 Hyde Amendment claim was timely. That argument suffers from two 17 problems. First, it assumes that the Hyde Amendment (and EAJA) permits more than one 18 triggering ruling in the same case to start the thirty-day clock for the submission of a fee 19 application. Second, that argument suggests that the Court had jurisdiction to entertain her 20 January 19, 2006 motion. 21 As noted above, the thirty-day fee application clock begins to run from the entry of final

22 judgment, the judgment or order entered that is both final and not appealable. For Vigil to argue 23 that successive rulings in the same case before the same court can start the thirty day clock, she 24 must point to a provision of the Hyde Amendment (and EAJA) that would permit such an 25 Even if either party had sought to appeal, neither party timely filed a notice of appeal. 26 Rule 4(b), Fed. R. App. P. 27 Once again, even if an appeal could have been filed, it was not. Hence, any fee application more than thirty days thereafter would have been untimely. See Haase v. Sessions, 28 893 F.2d 370 (D.C. Cir. 1990). 4
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1 argument. None exists. Furthermore, that argument suggests that the district court could issue 2 multiple final and not appealable rulings in the same action that would "terminate" the case for 3 which Hyde Amendment (or EAJA) fees could be received. Melkonyan v. Sullivan, 501 U.S. 4 89, 96 (1991). Given the clear construct of Section 2412(d)(1)(B) and (d)(2)(G), such an 5 assertion is simply illogical. 6 Second, Vigil would need to demonstrate the Court's jurisdiction to issue the

7 February 10, 2006 order.6 If the Court lacked jurisdiction to entertain that motion, its February 8 10, 2006 order based thereon would be void. United States v. Bigford, 365 F.3d 859, 865 (10th 9 Cir. 2004); United States v. Berke, 170 F.3d 882, 883 (9th Cir. 1999); see Steel Company v. 10 Citizens For A Better Environment, 523 U.S. 83, 101-02 (1998) (for a court to rule on a matter 11 "when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires"); Ex 12 parte McCardle, 7 Wall. 506, 514, 19 L.Ed. 264 (1968) ("without jurisdiction the court cannot 13 proceed at all in any cause"). 14 In all likelihood, Vigil made no attempt to establish the Court's jurisdiction to entertain

15 her January 19, 2006 motion because she could not find any such jurisdictional basis. The 16 Court's February 17, 2005 dismissal of the indictment left the prosecution as though no counts 17 had ever existed in the indictment as to Vigil. United States v. Sperling, 530 F. Supp. 672 18 (S.D. N.Y. 1982). The Court's February 17, 2005 ruling was neither tentative nor rendered 19 subject to timely reconsideration. 20 Any motion for reconsideration, so styled or in effect, would have to be filed within the

21 applicable appeal period from the Court's February 17, 2005 order of dismissal without 22 prejudice. United States v. Villapudua-Perada, 896 F.2d 1154, 1156 (9th Cir. 1990); United 23 States v. Jones, 608 F.2d 386, 390 (9th Cir. 1979); United States v. Emens, 565 F.2d 1142, 24 1444-45 (9th Cir. 1977). Vigil's January 19, 2006 motion to dismiss with prejudice was months 25 beyond any applicable appeal period and, accordingly, the Court lacked jurisdiction to entertain 26 27 In her January 19, 2006 motion to dismiss the indictment with prejudice, Vigil did not make any showing, or suggestion at all, as to why the Court had jurisdiction to entertain her 28 motion. 5
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1 it as a means to reconsider its February 17, 2005 ruling. United States v. Foumai, 910 F.2d 617, 2 620 (9th Cir. 1990) ("trial court decisions ordinarily become final and unreviewable when the 3 time for appeal and reconsideration have expired"); United States v. Breit, 754 F.2d 526, 530 4 (4th Cir. 1985) ("Because we can find no authority, and none is called to our attention, that 5 would permit a district court to reconsider and vacate an order of that court which has become 6 final in a criminal case, because of the expiration of the time to appeal, we find that the district 7 court lacked jurisdiction to decide Breit's motion to vacate"). 8 In United States v. Sumner, 226 F.3d 1005 (9th Cir. 2000), the Ninth Circuit reviewed a

9 district court's denial of a motion to expunge the defendant's twenty-six-year-old criminal 10 conviction for unlawful possession of narcotics (among other issues). In his motion, the 11 defendant argued that the district court could expunge his record under its inherent powers. The 12 district court held it lacked jurisdiction to expunge the records and defendant appealed. On 13 appeal, the Ninth Circuit cited Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994) 14 for the proposition that "[t]he burden of establishing (a federal court's) jurisdiction is on the 15 party asserting that a cause is within the court's power to act". Id. At 1010. The defendant 16 "attempted to invoke inherent equitable jurisdiction in a criminal action after the court's 17 judgment had become final, and he made no showing of illegality". Id. At 1012. The Ninth 18 Circuit further concluded that 19 20 21 22 23 Id. at 1013. Here, by virtue of the Court's February 17, 2005 dismissal order and the subsequent 24 expiration of any applicable appeal period with respect thereto (as well as the expiration of the 25 concomitant reconsideration period), Vigil lacked any jurisdictional basis for her January 19, 26 2006 motion to dismiss with prejudice. Correspondingly, the Court lacked the authority "to sit 27 28 6
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a district court has "inherent jurisdiction within the time allowed for appeal to modify its judgment for errors of fact or law or even to revoke a judgement." United States v. Villapudua-Perada, 896 F.2d 1154, 1156 (9th Cir. 1990). Rule 4(b) of the Federal Rules of Appellate Procedure provides that "a defendant's notice of appeal must be filed in the district court within 10 days after the entry of either the judgment or the order being appealed." Fed. R. App. P. 4(b).

1 in judgment" of the relief requested in said pleading.7 Vermont Agency of Natural Resources 2 v. Untied S tates, 529 U.S. 765, 778 (2000). 3 An Order is void, and therefore, subject to relief under Rule 60(b)(4), if the court that

4 rendered it lacked jurisdiction of the subject matter or the parties or entered "a decree which is 5 not within the powers granted to it by the law". United States v. Walker, 109 U.S. 258, 265-67 6 (1883); Wages v. IRS, 915 F.2d 1230, 1234 (9th Cir. 1990). Where, as here, Vigil misled the 7 Court into entering an order it clearly lacked jurisdiction to enter, the Court should set the order 8 aside.8 Gould v. Mutual Life Ins. Co. Of New York, 790 F.2d 769, 771-72 (9th Cir. 1986); see 9 Orner v. Shalala, 30 F.3d 1307 (10th Cir. 1994) (Rule 60(b)(4) properly applied by district court 10 for mistaken award of fees under EAJA). 11 12 Conclusion Based upon the foregoing analysis, the Court should exercise its authority under

13 Rule 60(b), Fed. R. Civ. P., and vacate its April 13, 2006 Order. 14 15 16 17 18 19 20 21 22 23 24 25 26 As the Ninth Circuit observed in Sumner, 226 F.3d at 1015, "[t]he Constitution prohibits federal courts from expanding their own subject matter jurisdiction."
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Respectfully submitted this 28th day of August, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/Richard G. Patrick RICHARD G. PATRICK Assistant U.S. Attorney

Alternatively, based upon the foregoing arguments, the Court's April 13, 2006 Order 27 was entered in error. See Rule 60 (b)(1) (permitting relief from order due to mistake). Rule 60(b)(1) relief is properly granted based upon error by a court. Kingvision Pay-Per-View Ltd. 28 v. Lake Alice Bar, 168 F.3d 347, 350 (9th Cir. 1999). 7
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CERTIFICATE OF SERVICE I hereby certify that on August 28, 2006, I served the attached document by mail to the

3 following, who are not registered participants of the CM/ECF System: 4 Natman Schaye Chandler & Udall, LLP 5 Attorneys at Law 33 North Stone Avenue, Suite 2100 6 Tucson, AZ 85701-1415 7 s/ E. Bender Office of the U.S. Attorney 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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