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DEATH ROW PRISONERS v. RIDGE

November 25, 1996

DEATH ROW PRISONERS OF PENNSYLVANIA, including, MICHAEL RAINEY, JAMES SMITH, TYRONNE MOORE, GEORGE EDWARDS, SCOTT BLYSTONE and ROLAND STEELE, for themselves and all other Pennsylvania Death Row Prisoners who are similarly situated,
v.
THOMAS RIDGE, individually and in his official capacity as Governor of the Commonwealth of Pennsylvania; THOMAS CORBETT, individually and in his official capacity as Attorney General of the Commonwealth of Pennsylvania; MARTIN HORN, individually and in his official capacity as Commissioner of the Department of Corrections of the Commonwealth of Pennsylvania, and OTHER EMPLOYEES AND OFFICERS OF THE COMMONWEALTH OF PENNSYLVANIA WHOSE IDENTITIES ARE PRESENTLY NOT KNOWN



The opinion of the court was delivered by: PADOVA

 Padova, J.

 November 25, 1996

 Plaintiffs, death row prisoners in the Commonwealth of Pennsylvania, filed this action against sundry Commonwealth officials, seeking a declaratory judgement that the Commonwealth of Pennsylvania is not an "opt-in" jurisdiction as that term is used and understood in the context of the Habeas Corpus provisions of the recently enacted Antiterrorism and Effective Death Penalty Act of 1996. Pub. L. No. 104-132, 110 Stat. 1214 (1996).

 The named Defendants in this suit are Governor Thomas Ridge, Attorney General Thomas Corbett, and Commissioner Martin Horn of the Pennsylvania Department of Corrections ("Defendants"). Each Defendant is sued in his official and individual capacity.

 Before the Court is Plaintiffs' Motion for Preliminary Injunctive and Declaratory Relief Pending Appeal against Defendants Ridge and Horn. For the reasons that follow, that Motion is dismissed for want of jurisdiction.

 I. Introduction

 By Memorandum and Order dated October 17, 1996 this Court denied Defendants' Motion to Dismiss for failure to state a claim upon which relief could be granted. In denying that Motion, this Court specifically rejected, among other defenses, the notion that Plaintiffs' action is barred by the Eleventh Amendment of the United States Constitution.

 Thereafter, the Court proceeded to consider Plaintiffs' Motion for Preliminary Injunctive and Declaratory Relief. During the pendency of that Motion, however, Defendants Ridge and Horn filed a notice of appeal, seeking interlocutory review *fn1" by the United States Court of Appeals for the Third Circuit of the Eleventh Amendment question. *fn2"

 Defendants Ridge and Horn submitted that, in light of the pendency of their appeal, this Court no longer had jurisdiction to entertain Plaintiffs' Motion for Preliminary Injunctive and Declaratory Relief. By telephone conference, Plaintiffs then modified their request for Preliminary Injunctive and Declaratory Relief to a request for Preliminary Injunctive and Declaratory Relief Pending Appeal against Defendants Ridge and Horn. (Tr. Oral Argument 11/30/96 at 2).

 Plaintiffs argue that this Court retains jurisdiction to decide their Motion because Defendants' appeal is "frivolous." Alternatively, Plaintiffs contend that the Court retains jurisdiction to decide their Motion on the basis of Fed. R. Civ. P. 62(c).

 For the reasons that follow, however, I agree with Defendants Ridge and Horn.

 A. Frivolity

 Generally speaking, the timely filing of a notice of appeal divests the district court of any further authority over those aspects of the case on appeal. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S. Ct. 400, 402, 74 L. Ed. 2d 225 (1982) ("[A] federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously. The filing of a notice of appeal is an event of jurisdictional significance -- it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal") (per curiam); Allan Ides, The Authority of a Federal District Court to Proceed After Notice of Appeal Has ...


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