Staying the Mandate of an Appellate Court While Seeking Certiorari (Translation: stopping the appellate court judgment from going into effect while trying to go to the U.S. Supreme Court)

I recently posted about a Sixth Circuit case in which the court issued an opinion reinstating a jury verdict in our client's favor.  But an appellate court's opinion does not immediately go into effect--there is time for the losing party to seek rehearing or rehearing en banc.  Only when that process concludes (or the time for it expires) does the official "mandate" issue--that mandate is what puts the opinion and judgment of the court into effect.  In our case, the losing party sought en banc review, which the court denied.  At that point, the losing party sought the extraordinary relief of staying the mandate.  They sought to stop issuance of the official mandate while they pursued an effort to seek review of the case by the U.S. Supreme Court.  Their stay motion is here.  Our opposition to their stay motion is here.  The Court denied their motion, and the mandate issued.

What follows is the text of the brief I filed to oppose the motion to stay the mandate.

[Cranpark's Opposition to Rogers' Motion to Stay Mandate]


In a unanimous decision, this Court properly ended more than a decade of litigation between the parties in this case, entering judgment for Cranpark. No judge of this Court even requested a vote for en banc review. The normal course of events should follow, including the standard mandate from this Court. The losing party, Rogers Group, now asks this Court to take the extraordinary step—contrary to this Court’s normal practice—to put everything on this case on hold pending their long-shot attempt to obtain reversal by the Supreme Court, when there is no basis to do so. There is no reasonable likelihood of four justices of the Supreme Court granting review of the panel’s 3-0 decision, and there is even less likelihood that—additionally—five justices would vote to overturn the panel’s well-considered opinion. In any event, there is no irreparable harm that would flow to Rogers Group in this diversity contract case involving typical money damages. This Court should deny Rogers’ motion and issue the mandate, as is standard. 


This Court’s Rules make clear that the mandate normally issues regardless of the losing party’s efforts to stay proceedings: “In the interest of minimizing unnecessary delay in the administration of justice, the issuance of the mandate will not be stayed simply upon request beyond the time necessary for disposition of a motion seeking a stay.” 6th Cir. R. 41(a). “The mandate ordinarily will issue pursuant to Fed. R. App. 41(b),” the Rule continues, “unless there is a showing, or an independent determination by this court, that a petition for writ of certiorari would present a substantial question and that there is good cause for a stay.” Id. (emphases added). Simply put, the regular process is for the mandate to issue; if the losing party wishes to seek certiorari, that party is free to do so: “The issuance of a mandate does not affect a party’s right to seek a writ of certiorari.” 6th Cir. I.O.P. 41(d). If the “prevailing party recovers a money judgment for money or property, that party may execute upon it” while certiorari is pending. 23-523 Moore’s Federal Practice – Civil § 523.04 (2016). 

This Court follows these well-accepted principles underlying 28 U.S.C. § 2101(f), which is the statutory authority for a judge of this Court or the Supreme Court to grant a stay pending certiorari. Because staying the mandate is a form of temporary injunction that stops the normal litigation process, the court’s inquiry centers on whether the losing party can show both a likelihood of success on the merits and that it will suffer irreparable harm without a stay. Thus, in this context, the losing party has the burden to show there is a “reasonable probability that four justices will vote to grant certiorari and a reasonable possibility or ‘fair prospect’ that five justices will vote to reverse [this] court’s judgment,” and that party must also show irreparable harm will occur without the stay. 20A-341 Moore’s Fed. Practice – Civil § 341.14[2] (2016) (citing various cases, including Al-Marbu v. Mukasey, 525 F.3d 497, 499–500 (7th Cir. 2007) (Ripple, J., in chambers)); see also Rubin v. United States, 524 U.S. 1301, 1301–2, 119 S. Ct. 1 (1998) (Rehnquist, C.J., as Circuit Justice) (applicant for stay must show (1) that denying stay and enforcing lower-court judgment would cause irreparable harm; (2) likelihood of certiorari will be granted (i.e., that four members of Supreme Court will vote to grant certiorari); and (3) likelihood that Supreme Court, having granted certiorari, will ultimately reverse lower-court judgment). Paying money damages is generally not considered irreparable harm. See, e.g., Birtcher Corp. v. Diapulse Corp. of America, 87 S. Ct. 6 (1966) (Harlan, J., in chambers). That’s why a stay would be warranted in a capital case where the losing party has a good argument for reversal by the Supreme Court and there is a risk that the party will be executed before that can happen. 

Of course, even if the losing party makes the extraordinary showing to justify a stay, that party typically must post a supersedeas bond for the full amount of the judgment, plus any interest and costs, before the Court will authorize the stay. See Fed. R. App. P. 41(d)(D) (pending a petition for certiorari, “[t]he court may require a bond or other security as a condition to granting or continuing a stay of the mandate.”); see also Sup. Ct. R. 23(4) (stating that judge granting application for stay pending certiorari review may condition stay on filing of bond that will be conditioned on “the satisfaction of the judgment in full, together with any costs, interest, and damages for delay that may be awarded”). Here, because the verdict was $15.6 million and the prejudgment interest is now approximately $16.8 million, the bond amount would be approximately $32.5 million. (See First Br. at 60, noting that total judgment as of 12/2/13 was $31.2 million). Again, a bond comes into play only if a stay is warranted. 

There is no basis for a stay in this case. First, there is no reasonable likelihood of Supreme Court review, let alone reversal of the panel’s unanimous opinion. No judge of this Court even requested a vote for en banc review. The panel properly explained the elementary differences between Article III standing and the defense that a plaintiff is not the real party in interest under Rule 17. The cases Rogers’ relies on for a purported circuit “split” were considered by this Court and explained in Cranpark’s Third Brief at pages 4–8. The panel simply corrected a basic error by the magistrate judge below, reinstating the verdict as the jury properly imposed it. Moreover, the entire basis for the magistrate judge overturning the verdict centered on Rogers’ claim that Cranpark had sold its right to bring this lawsuit—a fact that is demonstrably false. (See First Br. at 9–10 (images of Asset Purchase Agreement entered into district court record that show Cranpark retained the right to bring “any and all present or potential claims . . . and lawsuits . . . .”). The Supreme Court of the United States is not going to devote its limited resources to reviewing this panel’s unanimous opinion that simply got it right on the law and the facts. And the Supreme Court certainly isn’t going to reverse the panel’s decision, entering into some fictional world where Cranpark “sold” its right to sue when it never did so. Moreover, whatever “harm” Rogers Group alleges here is not irreparable—it is simply the payment of money damages that are owed Cranpark. These are damages that have been wrongly incurred by Cranpark for approximately 17 years. If anyone has been harmed here, it is Cranpark. 

Rogers falls far short of establishing that it is entitled to the extraordinary relief of staying this Court’s mandate. This Court should deny Rogers’ motion and issue the mandate per its normal process.