Circuit Rule 41-1: Stay of Mandate

In the interest of minimizing unnecessary delay in the administration of criminal justice, a motion for stay of mandate pursuant to FRAP 41(d), pending petition to the Supreme Court for certiorari, will not be granted as a matter of course, but will be denied if the Court determines that the petition for certiorari would be frivolous or filed merely for delay.

In other cases, including National Labor Relations Board proceedings, the Court may likewise deny a motion for stay of mandate upon the basis of a similar determination.

Circuit Advisory Committee Note to Rule 41-1

Only in exceptional circumstances will a panel order the mandate to issue immediately upon the filing of a disposition. Such circumstances include cases where a petition for rehearing, or petition for writ of certiorari would be legally frivolous; or where an emergency situation requires that the action of the Court become final and mandate issue at once. The mandate will not be stayed automatically upon the filing of an application to the Supreme Court for writ of certiorari. However, a stay may be granted upon motion.

A motion to stay or recall the mandate will not be routinely granted; it will be denied if the Court determines that the application for certiorari would be frivolous or is made merely for delay. (Rev. 12/1/09)

In general, a party has 90 days from the entry of judgment or the denial of a timely petition for rehearing, whichever is later, in which to petition for a writ of certiorari. A circuit court cannot extend this period; application for an extension must be made to the Supreme Court. Counsel should be mindful that the judgment is entered on the day of the Court’s decision and not when the mandate -- i.e., a certified copy of the judgment -- is issued. (New 1/1/03; Rev. 7/1/16)