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Thursday, November 09, 2017

The overwhelming effect of stays pending appeal

The Second Circuit denied a stay pending appeal of the denial of an injunction barring suspension of NFL running back Ezekiel Elliott. The court referred to it as an "injunction pending appeal," which is wrong and the improper terminology makes the media reporting on this more confusing than usual.

Tracing the history of this case is a Fed Courts or Remedies problem all its own: 1) Elliott was suspended for six games and an arbitrator upheld the suspension; 2) a judge in the Eastern District of Texas issued a preliminary injunction barring enforcement of the suspension (allowing Elliott to play); 3) the Fifth Circuit reversed, holding that the district court lacked jurisdiction, grounds that were arguably incorrect, although the result was probably right (barring Elliott from playing); 4) the union and player filed suit in the Southern District of New York; 5) a district judge granted a TRO (allowing Elliott to play); 6) the same judge refused to grant a preliminary injunction (barring Elliott from playing); 7) the Second Circuit granted a temporary stay of the denial of the preliminary injunction (allowing Elliott to play) pending fuller consideration of the motion to stay; 8) the Second Circuit today denied a full stay pending appeal, allowing the judgment denying the preliminary injunction to go into effect, meaning the suspension goes into effect and Elliott will not be able to play on Sunday (unless SCOTUS gets involved).

Even more than in the marriage-equality litigation, the stay question dictates the result in these cases. Although the Second Circuit granted expedited appeal, it is not clear that the case will be resolved before Elliott has missed six games. The question is the weight the likelihood-of-success prong bears in these cases--it is hard to overturn an arbitrator's decision, so Elliott was not likely to succeed in having the denial of the injunction reversed. And that may have convinced the court of appeals there was no irreparable harm in having the suspension take effect.

Posted by Howard Wasserman on November 9, 2017 at 05:09 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


The recent abortion/unaccompanied minor case was also an example of where a denial of a stay pending appeal dictated the result, wasn't it?

Posted by: biff | Nov 14, 2017 5:59:27 PM

I agree that stays pending appeal are immensely important and sadly under-discussed and I have written on the topic of stays pending appeal - https://ssrn.com/abstract=2940365.

Here, the plaintiffs, Ezekiell Elliott and the NFL Players' Association, (and maybe the courts) sometimes used technically incorrect or confusing language, but the Second Circuit decisions weren't actually about stays pending appeal. What Elliott and the players' association (plaintiffs) really wanted from the Second Circuit (in #7 and 8 above) was technically some type of emergency injunction, no matter what they called it in their papers.

Ezekiell Elliott and the players' association would not benefit from "a stay of the denial of the preliminary injunction pending appeal." A stay of the denial of an injunction would be a type of null result; staying the denial of an injunction would not mean that the injunction is granted. Elliott and the players association want an injunction against the 6-game suspension. The Second Circuit, twice, denied the request to grant that emergency or preliminary injunction.

The only situation where a party wants (and will benefit from) a stay of an injunctive order pending appeal is when a losing defendant asks for a stay of an injunctive order that a plaintiff won. A stay of an injunctive order means that the defendant can continue the challenged action, but "a stay of a denial of an injunction" would not do anything much unless the deciding court also granted the requested injunction. Injunctions order defendants to do something or to stop doing something. Stays of injunctive orders hold the enforcement of a court order in abeyance. There is no such thing as a stay of the denial of an injunction. Or at least not one that grants injunctive relief (which is what Elliott and the players' association want) unless the court also decides to grant an emergency or preliminary injunction of some sort.

Posted by: Portia Pedro | Nov 14, 2017 2:02:13 PM

You'd think a court could have actually decided the merits in the same timeframe that these numerous courts decided the likely result of the merits decision.

Posted by: Jill W Lens | Nov 10, 2017 11:26:38 AM

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