__________________________________________________________ MOTIONS TO ENFORCE DECISION DENIED: March 23, 1993 ___________________________________________________________ GSBCA 11857-P WILTEL, INC., Protester, and MCI TELECOMMUNICATIONS CORPORATION, Intervenor, v. GENERAL SERVICES ADMINISTRATION, Respondent, and AT&T COMMUNICATIONS, INC., Intervenor. David W. Burgett, Douglas R. Duberstein, William A. Bradford, and Pierre M. Donahue of Hogan & Hartson, Washington, DC, and Patricia E. Martin of WilTel, Inc., Tulsa, OK, counsel for Protester. Robert Koehler, Mary Beth Bosco, Curtis V. Gomez, and Michael J. Schaengold of Patton, Boggs & Blow, Washington, DC, and Robin L. Redfield of MCI Telecommunications Corporation, Washington, DC, counsel for Intervenor MCI Telecommunications Corporation. George Barclay, Michael J. Ettner, and Seth Binstock, Personal Property Division, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Thomas C. Papson and Daniel E. Johnson of McKenna & Cuneo, Washington, DC, and Jonathan S. Hoak, G. Ridgely Loux, and Michael R. Greene of AT&T Communications, Inc., Silver Spring, MD, counsel for Intervenor AT&T Communications, Inc. Before Board Judges PARKER, HENDLEY, and NEILL. HENDLEY, Board Judge. ORDER The protester, WilTel Inc. (WilTel), and an intervenor, MCI Telecommunications Corporation (MCI), have moved to have us enforce our decision of August 4, 1992. The respondent, the General Services Administration (GSA), and an intervenor, American Telephone & Telegraph Communications, Inc. (AT&T), both oppose the motion. Background In our decision on the merits of the protest, WilTel, Inc. v. General Services Administration, GSBCA 11857-P (Aug. 4, 1992), we "concluded that Modification PS95 is outside the scope of FTS2000" and "that T-3 service is a new service whose procurement must be competed by the respondent." For those reasons we granted the protest. We did not direct that the modification be canceled by some specified date. The T-3 service then being provided by AT&T to one of the "paired cities" may well have been urgently needed and hence should not have been summarily halted. Although the remaining paired cities slated to receive service under the modification had not actually been hooked up to the service, such services may also have been promptly required. For reasons not germane to the instant issue, a suspension of the respondent's delegation of procurement authority was not sought and hence we did not take evidence on, or make any findings relating to, the effect on the public exigency of halting T-3 service. Our decision in the WilTel case has been appealed to the Court of Appeals for the Federal Circuit by the intervenor, AT&T. Under longstanding rules, once an appeal has been lodged, the forum whose decision has been appealed may not amend or modify its holding without the express permission of its appellate court. In fact, once an appeal has been filed, a lower court cannot even correct clerical errors without the express permission of its appellate court (Rule 60 of the Federal Rules of Civil Procedure), much less expound on or modify its decision. Our appealed decision, however, is not a nullity. It is not a nullity nor is it in some state of suspension simply because it has been appealed. Unless reversed or modified by our appellate court, our decision of August 4, 1992, continues to stand, somewhat in the nature of a declaratory judgment, as a binding declaration of the legal status of modification PS95 and the rights and obligations of the party litigants. Unless and until reversed by our appellate court, our adjudication of the status of modification PS95 stands. There is a somewhat puzzling factor in the movants' motion, to wit, it is predicated on the assumption that the respondent is somehow violating our decision. The respondent seemingly denies any such allegation. Even if we could proceed as if no appeal had been filed (and we obviously cannot do so), we would have no basis to conclude, at this time, that the respondent has violated our decision in any particular. What the respondent appears to have done is to do nothing. It is apparently continuing to obtain T-3 service for the only set of paired cities that had been "hooked up" prior to our decision. We have no reason to believe that T-3 service has been instituted for any of the remaining twenty paired cities, and counsel for respondent has assured us in its brief that none has in fact been "hooked up." Decision For the reasons set forth above, the motions are DENIED. _____________________________ JAMES W. HENDLEY Board Judge We concur: _________________________ ROBERT W. PARKER Board Judge _________________________ EDWIN B. NEILL Board Judge