Handbook VIII.A: Motions for Stay or Emergency Relief

(See Fed. R. App. P. 8, 18; D.C. Cir. Rules 8, 18, 27(e).)

Filing a notice of appeal, or obtaining permission to appeal, generally does not automatically stay the operation of the judgment or order under review. Except in cases involving money judgments against the United States or the District of Columbia, or where the appellant posts a bond or other security in accordance with Federal Rule of Civil Procedure 62(d), the losing party must move to obtain a stay or injunction pending appeal to prevent immediate execution of the judgment or order being appealed, or immediate enforcement of an agency order under review. Such motions are procedural motions; they can be filed as soon as possible, but usually no later than 30 days after docketing unless the Court’s scheduling order sets a different date.

Application for a stay or any other appropriate emergency relief must first be made to the district court or agency whose order is being appealed, or the motion filed in this Court must explain why such relief was not sought. If the district court or agency denies the relief requested, an application may then be made to this Court. A motion for a stay must describe any prior applications for relief and their outcome.

If the facts are in dispute, evidentiary material supporting the request for a stay should be furnished. Relevant portions of the record must be included with the motion. At a minimum, these include a copy of the judgment or order involved, and any explanation, written or oral, that accompanied the ruling. The motion also should contain, in a prominent place, a specific statement of the time exigencies involved.

Because many motions for stay are filed on an emergency basis, Circuit Rules 8, 18, and 27(e), which prescribe the procedures for seeking emergency relief, should be reviewed carefully. In particular, counsel or a party must identify the motion as an "Emergency Motion," and file it at least 7 days before the date on which court action is necessary, or explain why the motion could not have been filed sooner. Where counsel or a party gives only a vague or general explanation as to why it was not filed at least 7 days before the date of the requested court action, the Court may conclude that expedited consideration of the motion is unwarranted.

Counsel or a party seeking expedition of a stay application or any other matter must communicate the request for emergency consideration in person or by telephone to the Clerk's Office and to the opposing side. If the motion is not filed electronically or if the opposing party has not consented to electronic service, the motion must be served by hand or, in the case of out-of-town parties, by another form of expedited service authorized by Federal Rule of Appellate Procedure 25. The motion must describe the efforts made to notify the opposing side.

When an emergency motion is filed in a case not yet assigned for hearing on the merits, it is referred to the Director of the Legal Division for assignment to a staff attorney and immediate referral to the Court for disposition. The Court does not normally grant the relief requested before receiving a response. However, it may enter an administrative stay of very short duration before receiving a response to give the Court more time to consider the matter. The administrative stay order will usually direct that responses to the motion be expedited. Alternatively, the Court may order expedited responses without issuing a temporary stay. The Court might conclude that the matter does not require unusual expedition and take no action prior to the filing of a response, or it may deny the motion without awaiting a response.

The motion for stay or for emergency relief must specifically discuss four factors: (1) the likelihood that the moving party will prevail on the merits; (2) the prospect of irreparable injury to the moving party if relief is withheld; (3) the possibility of substantial harm to other parties if relief is granted; and (4) the public interest. See Washington Metropolitan Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977); Virginia Petroleum Jobbers Ass'n v. Federal Power Comm'n, 259 F.2d 921 (D.C. Cir. 1958). In seeking a stay or injunction pending appeal, counsel also should address the question whether the appeal should be expedited if a stay or injunction is granted.

A party filing or opposing a motion for stay or other emergency relief may, in addition or in the alternative, file a motion to dispose of the appeal or petition for review in its entirety. If the Court grants a motion for stay or for injunction pending appeal, it may, pursuant to Federal Rules of Appellate Procedure 8(a)(2)(E) and 18(b), condition the stay or injunction on the posting of a bond or other security in the appropriate court. No such bond is required where the federal government or the District of Columbia is the appellant. See Fed. R. Civ. P. 62(e); D.C. Superior Court Rule 62.