1989-10-10_REVISION - M1988112 (35)

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An exception to the general rule of continuing jurisdiction is reflected in a line of Colorado cases which expressly limit the authority of an agency to change, alter or vacate an order while review proceedings are pending in the district court. See Colorado Anti-Discrimination Comm. v. Continental Airlines. Inc., 355 P.2d 83 (Colo. 1960;; Marr v. Colorado Dept. of Revenue, 598 P.2d (1955) (Colo.A:pp. 1979); O'Brvant v. Public Utilities Comm., XIII Brief Times Reptr. 853 (Colo. 7-17-89). While these cases limit the authority of an agency to modify an order in certain specific instances, they do not prohibit all agency action on an existing permit while the order approving such permit is subject to pending judicial review proceedings. Such an interpretation would conflict with the general rule stated above that the court constitutionally lacks authority to enjoin an agency in the exercise of its statutory authority. Rather, Continental Airlines, Marr, anc9 O'Brvant provide a narrow exception to the general rule applicab:,e when the agency's exercise of its statutory authority directly conflicts with the court's jurisdiction to determine issues which are subject to a pending judicial review action. A review of the cases and their factual and procedural histories clearly de~.fines the appropriate limits to this exception. In Continental Airlines, supra, the agency order sought to correct unfair employment practices by Continental. The district court remanded the orders to the Commission with specific instructions for the Commission to make limited findings of fact. However, because the district court had also ruled that there was a procedural defect in the original orders, the Commission sought to withdraw the original orders and substitute revised orders. In making the revised orders the Commission neither gave notice to either party nor conducted a hearing. Accordingly, the Commission's action deprived Continental Airlines of a defense to the original orders and also injected new facts which Continental Airlines had not had the opportunity to challenge at an agency level. For these reasons the district court held that the new orders were a nullity and the Supreme Court affirmed. In affirming the lower court order, the Supreme Court used broad language in limiting the Agency's authority over an order once judicial review proceedings had been initiated. The court stated that "an administrative agency is without authority to change, alter or vacate an order while review proceedings are pending in the district court, even as an inferior court is without authority to vacate or modify a judgment after writ of error has issued out of this Court directed to such judgment." Colorado Anti-Discrimination Commission v. Continental Airlines, Inc., 355 P.2d at 86 (Colo. 1960). The Supreme Court was compelled to use this extremely broad language due to a provision found in Colorado's Anti-Discrimination Act which provides that the "jurisdiction of the [reviewing] court shall be exclusive and its judgment and order shall be final, subject to review by the Supreme 5