# State of Oregon v. City of Rajneeshpuram/1984 10 02

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State of Oregon v. City of Rajneeshpuram. United States District Court for the District of Oregon. October 2, 1984. Civil No. 84-359 FR.

## Case summary

STATE OF OREGON Plaintiff, v. CITY OF RAJNEESHPURAM, a putative Oregon municipal corporation; WASCO COUNTY, a political subdivision of the State of Oregon; ROBERT M. BROWN, Sheriff of Wasco County; RAJNEESH FOUNDATION INTERNATIONAL, a New Jersey corporation; RAJNEESH INVESTMENT CORPORATION, an Oregon corporation; RAJNEESH NEO-SANNYAS INTERNATIONAL COMMUNE, an Oregon corporation; MA ANAND SHEELA, individually; SWAMI PREM JAYANANDA, MA YOGA VIDYA, SWAMI KRISHNA DEVA, MA PREM ARCHAN, SWAMI DEVA SANDESH, MA PREM PATIPADA, MA DEVA JAYAMALA, MA SAT PRABODHI, MA PREM RIKTA, individually and as representatives of the class of all current residents of the City of Rajneeshpuram; Defendants
Civil No. 84-359 FR
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
October 2, 1984, Decided and Filed
COUNSEL: [*1] Dave Frohnmayer, Attorney General, William F. Gary, Deputy Attorney General, John A. Reuling, Jr., Special Counsel, Robert W. Muir, Asst. Attorney General, and Margaret Rabin, Asst. Attorney General, for Plaintiff.
Wilford K. Carey, Wasco County Counsel, for Wasco County.
Ma Prem Sangeet, Rajneesh Legal Services Corporation, and Robert D. Durham, for Defendants.

## Opinion

OPINION BY: FRYE
OPINION
Helen J. Frye, United States District Judge
OPINION AND ORDER
FRYE, Judge:
The State of Oregon and Wasco County have moved the court to reconsider its earlier decision which realigned Wasco County as a plaintiff for jurisdictional purposes and denied the State of Oregon's motion to remand this case to the Wasco County Circuit Court. In the event that the motion to reconsider is denied, the State of Oregon moves the court to certify the removal issue for immediate appeal under 28 U.S.C. § 1292(b).
Wasco County's primary argument in opposition to its realignment is that Wasco County has never taken a position with respect to the constitutional issues in this suit, and that the fact that Wasco County has been aligned against the City of Rajneeshpuram in other lawsuits is irrelevant to its alignment in [*2] the present case. Wasco County's primary concern is that it may be subject to counterclaims or an attorneys' fee demand by the other defendants if Wasco County is forced to be aligned with the State or Oregon as a plaintiff.
For the reasons articulated in the earlier opinions, the motion for reconsideration will be denied. The effect of this court's prior order was not to realign Wasco County as a plaintiff for all purposes, but rather to realign Wasco County as a plaintiff for purposes of determining jurisdiction only. A party may be realigned for jurisdictional purposes without effecting a realignment for other purposes. See, e.g., Eikel v. States Marine Lines, Inc., 473 F.2d 959 (9th Cir. 1973). Wasco County's concern that it might be subject to counterclaims or the payment of attorneys' fees merely because the court realigned it for jurisdictional purposes is unfounded.
The court will grant the request to amend the prior order to allow an immediate appeal. 28 U.S.C. § 1292(b) provides in part: When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question [*3] of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order. . . . Defendants' main argument against allowing the immediate appeal is that the issues decided by this court in the prior orders -- whether plaintiff's complaint "arises under" federal law for jurisdictional purposes and whether Wasco County should be realigned as a plaintiff for jurisdictional purposes -- involve not so much controlling questions of law, as required by section 1292(b), as they involve factual determinations. However, the court believes that the first issue decided by the prior orders -- that the complaint "arises under" federal law -- is strictly a question of law. As to the second issue, while the court's ruling turned on an ultimate factual finding that Wasco County and the State of Oregon share the same interest with respect to the central issue in the case, the facts upon which the ultimate finding was based were not in dispute. What [*4] is disputed is whether this court was correct in realigning Wasco County given the undisputed facts in the record. As such, the prior order "involve[d] a clear-cut question of law against a background of determined and immutable facts," 9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice P110.22[2] at 261 (2d ed. 1983), and hence is properly subject to a section 1292(b) appeal. Because the issue of subject matter jurisdiction is so fundamental; because the issue is one to which there is substantial ground for difference of opinion; and because the potential for waste of court and party time is so great if this court is found to be in error, the court will amend the prior order to allow an immediate appeal to be taken.

## Order

IT IS THEREFORE ORDERED that
The State of Oregon and Wasco County's motions for reconsideration are DENIED; and
The State of Oregon's motion to amend the prior order to allow immediate appeal is GRANTED. Counsel for the State of Oregon shall forthwith prepare the amended order for the court's signature.
DATED this 2nd day of October, 1984.
Helen J. Frye, United States District Judge
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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