!- ,-n UNITED STATES COURT OF A!PEAV' FOR DISTRICT OF COLUMBIA CIFICL OCT 1 1 2OO6!N LE !ITED STATES COURT !F APPEALS [ OR1 THE DISTRICT OF COLUT!IBIA CIRCUIT ri-!rf%rI! ! ru::'-'! v L!IJ - EL3UISE!TONT!T31!LL, et al., Plaintiffs-Appellees, v. No. 05-5269 DIRK KEMPTHORNE, Secretary of the Interior, et al., Defendants-Appellants. DEFENDANTS' RESPONSE TO PLAINTIFFS' MOTION TO STAY THE MANDATE Defendants, the Secretary of the Interior, et al., respectfully respond to plaintiffs' motion to stay the mandate in this appeal. Although plaintiffs have not identified a substantial question warranting Supreme Court review, see Fed. R. App. p. 41(d) (2), the government takes no position as to a stay. 1. Plaintiffs' motion indicates that they will ask the Supreme Court to grant certiorari to determine whether the government should have presented its reassignment request to the district court in the first instance. Motion at 2. Plaintiffs addressed this issue in a footnote of their appellate brief,, see P1. Er. 32 n.29, and this Court has made clear that reassignment questions may be considered by the court of appeals in the first instance. See, e.g., United States v. Microsoft Corp., 56 F.3d 1448, 1463-65 (D.C. Cir. 1995) . ! also Mackler Productions, Inc. v. Cohen, 225 F.3c1 136, 146-47 (2d Cir. 2000) ; Haines v. Liqqett Group, Inc., 975 F.2d 81, 97-98 (3d Cir. 1992); United States v. White, 846 F.2d 678, 695-96 (11th Cir. 1988) ; Simon v. City of Clute, 825 F.2d 940, 943-44 (5th Cir. 1987) . In the single Tenth Circuit case on which plaintiffs rely, the reassignment request was based in part on "several out-of-court statements" made by the judge to the United States Attorney and an Assistant United States Attorney, which the government attempted to document on appeal, with an affidavit from the United States Attorney summarizing those remarks. United States v. Roberts, 88 F.3d 872, 884-85 & n.6 (10th Cir. 1996). Under those circumstances, the Tenth Circuit declined to order reassignment without giving the district court an opportunity to address the comments attributed to it. !. at 885-86. By contrast, the government's reassignment motion in this case was not based on out-of-court communications, but on the July 12 opinion itself, in conjunction with the unbroken line of reversals. See 455 F.3d at 331. 2. Nevertheless, it does not appear that a stay of the mandate would significantly interfere with the government's ability to perform the historical accounting, and, accordingly, the government takes no position as to issuance of a stay. We 'understand from plaintiffs' motion that plaintiffs do not intend to seek relief from the district court before a new judge is assigned to the case. Should circumstances change, we reserve the right to seek expedited issuance of the mandate. -2- Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEFFREY A. TAYLOR United States Attorney ROBERT E. KOPP MARK B. STERN THOMAS N. BONDY ALISA B. KLEIN MARK R. FREEMAN ISAAC J. LIDSKY (202) 514-5089 Attorneys, Appellate Staff Civil Division, Room 7531 Department of Justice 950 Pennsylvania Ave., N.W. Washinqton, D.C. 20530-0001 OCTOBER 2006 -3- CERTIFICATE OF SERVICE I hereby certify that on this 11th day of October, 2006, I caused copies of the foregoing response to be sent to the Court and to the following by hand delivery: The Honorable Royce C. Lamberth United States District Court United States Courthouse Third and Constitution Ave., N.W. Washington, D.C. 20001 Keith N. Harper G. William Austin Kilpatrick Stockton 607 14th Street., N.W., Suite 900 Washington, D.C. 20005 (202) 508-5800 and to the following by federal express, overnight mail: Elliott H. Levitas Law Office o.f Elliott H. Levitas 1100 Peachtree Street Suite 2800 Atlanta, GA 30309-4530 (404) 815-6450 and to the following by regular, first-class mail: Dennis Marc Gingold 607 14th Street, N.W. Washington, D.C. 20005 Earl Old Person (pro se) Blackfeet Tribe P.O. Box 850 , Browning, MT 59417 ALISA B. KLEIN