Legal Memorandum: Stay or Injunction Pending Appeal

Issue: Under the Federal Rules of Appellate Procedure, when is a party allowed to obtain a stay or an injunction pending appeal?

  The Federal Rules of Appellate Procedure set forth the procedure in the federal courts of appeal for motions staying or enjoining lower court actions pending appeal.  Such a motion “may be made to the court of appeals or to one of its judges” directly if “moving first in the district court would be impracticable.”  Fed. R. App. P. 8(a)(2)(A).  See, e.g., Gonzalez v. Reno, 212 F. 3d 1338 (11^th Cir. 2000) (the Elian Gonzalez case, holding that although “[a] party must ordinarily first move in the district court for an injunction pending appeal,” “[a] motion for an injunction pending appeal may be made directly to the court of appeals when a party shows that moving first in the district court would be impracticable,” and that it was satisfied in that case “that Plaintiff has sufficiently shown that it would have been impracticable to move first in the district court; the time-sensitive nature of the proceedings and the possibility that we could have lost jurisdiction in the absence of an injunction support our exercise of discretion in this case”) (citing Michael v. INS, 48 F.3d 657, 663 (2d Cir.1995)).  

The factors regulating the issuance of a stay are: (1) whether the applicant has made a strong showing that he or she is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other […]