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Friday, September 18, 2015

Sixth Circuit denies Kim Davis another stay

The Sixth Circuit on Thursday denied Kim Davis a stay pending appeal of the order extending the original injunction to bar her from denying licenses to any eligible couples (the extended injunction was issued the same day Judge Bunning jailed Davis for contempt). (H/T: Religion Clause Blog and Josh Blackman) Davis never asked the district court for a stay pending appeal, as required by Federal Rule of Appellate Procedure 8(a)(1)(A), and the court of appeals refused to accept "extraordinary doggedness of the district court to expand the Injunction, without jurisdiction or fair notice and opportunity to be hearing" as basis for finding that it would be "impracticable" to move in the district court, as required by FRAP 8(a)(2)(A)(i).

The latter conclusion is fair, I suppose, since the argument basically accuses the district court of having it in for Davis. Nevertheless, there is something strange about asking a district court to stay an injunction that he just entered by finding that the defendant has a substantial likelihood of success on appeal--in other words, there is a substantial likelihood that the district court was wrong. We do not require trial courts to make a similar confession of likely error in any other context. It also seems like a waste here--Davis will now ask Bunning for a stay, he will deny it, and the issue will be back with the court of appeals in a week or two.

It is notable that the extension of the injunction was not, as plaintiffs requested and many (including me) assumed, in anticipation of class certification. Instead, the district court extended the injunction in recognition of two other individual actions challenging Davis' no-marriage policy. (H/T: Marty Lederman for the analysis). I am not sure that is a valid basis for extending the injunction (where as expanding in anticipation of class status would be), so Davis may actually have one small argument that is not doomed to total failure.

Posted by Howard Wasserman on September 18, 2015 at 01:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


I am not sure what I said in the post that is inaccurate. I was simply pointing out the oddity of asking a district judge to decide she likely was wrong.

But I am happy to point out two things you seem to have missed in your anonymity. First, the court of appeals does not review the denial of stay; it decides independently whether to grant a stay of the injunction. My point was simply that it would have been better to actually make that decision rather than punt on the Rule 8 issue. Second, her challenge to the extension of the injunction was not about state law, but about whether the court could extend an injunction to protect non-parties in the absence of class certification, which is a question of federal law.

Posted by: Howard Wasserman | Sep 25, 2015 11:00:35 AM

No surprisingly, this blog is incorrect. A petitioner has to ask the trial judge for stay before an appeal is taken (as pointed out above). However, the appeals court does not have to allow a stay and the decision is reviewed under an abuse of discretion. The problem here really is two fold for Kim Davis. 1) She is asking for relief from a validly entered injunction that she has no likelihood of overturning on appeal, at least as the issues of Federal law (14th amendment). 2. She is really requesting relief from a Federal court for a pure question of state law (Kentucky's RFRA) which the trial judge already disposed of and that ruling has been upheld (at least as to the preliminary injunction).

Posted by: anon | Sep 25, 2015 10:15:49 AM


Back in the Dark Ages when I was a clerk in federal
District court, I saw something similar. Federal habeas petitions
were considered by the original district judge. Bad as this was in the usual ineffective assistance claim,
It was even more concerning when defendants raised the many drug sentencing claims of that era.

I could never understand why habeas petitions were not automatically referred to a judge who hadn't presided over the assertedly defective trial or sentencing. Perhaps this was the practice in other districts, but not ours.


Posted by: Adam | Sep 19, 2015 11:18:58 AM

That would be pretty attenuated, since a panel cannot overturn circuit precedent. So it would have to be a stay based on anticipation that the full circuit will vacate a panel decision (or at least call attention to a circulated draft of the panel decision) and vote to rehear the case en banc. That is so far down the line, timing-wise, that it's difficult to imagine it affecting the district court's analysis.

Posted by: Howard Wasserman | Sep 19, 2015 11:05:07 AM

A district court might believe that it was bound by precedent that the court of appeal will likely choose to overturn.

Posted by: Jr | Sep 19, 2015 10:47:43 AM

I thought that the substantial-likelihood showing was only one of four stay factors, and that courts (maybe - it's unclear after Winter and Munaf, though those are preliminary injunction cases) balance the factors. Now, since the other three factors are the same factors, roughly, as the preliminary-injunction factors, a court that's granted a preliminary injunction probably will never stay its preliminary injunction. But if a court enters some non-injunctive judgment that it thinks is right, it could nevertheless hold that the loser would be irreparably harmed absent a stay pending appeal, that the stay is in the public interest, and that others wouldn't be substantially harmed by granting the stay. And it would be even easier to issue a stay in that circumstance if the court thinks the case was close (suppose there's a circuit split and the issue is open in its circuit) and the loser stands a 50/50 chance of winning on appeal. For that matter, it is possible for a court to think that some result is correct but to simultaneously recognize that there's a likelihood that an appellate court will see things differently. A district court that held that the contraception mandate accommodation violated RFRA would be in that position, for example, given that the circuit scorecard is 6-1 the other way.

Posted by: Asher | Sep 18, 2015 6:24:44 PM

The standard is technically the stay movant needs to show a "strong likelihood of success on the merits" of the appeal. So not only does the district court judge have to expect that she will get reversed, but that she has to believe the movant has made a "strong" showing of that likely reversal. I would hope no district court judge ever believes the party she just ruled against on the merits makes a "strong" showing of her case on the merits.

Very often judges deny this factor of the stay explaining that the movant only makes the same arguments for a stay that the district court just rejected on the merits.

Posted by: Jill Lens | Sep 18, 2015 2:39:34 PM

But there is a difference between asking a judge to say, in essence, "reasonable minds may differ on a legal interpretation" and asking a judge to say, in essence, "it is likely that I was wrong on the law and application of law to fact." The latter is a much more difficult thing for a court to come around to.

Posted by: Howard Wasserman | Sep 18, 2015 1:50:37 PM

We in fact do require district courts to make similar assessments of their own likelihood of error. An interlocutory appeal under 28 USC 1292(b) requires the district judge to make a certification that "there is substantial ground for difference of opinion." And I have always found that requirement equally inexplicable (except as a way to make interlocutory appeals extremely difficult).

Posted by: TJ | Sep 18, 2015 1:45:49 PM

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