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FIRST AMENDMENT COALITION v. JUDICIARY INQUIRY & R

April 2, 1984

The FIRST AMENDMENT COALITION, Frederick J. Huysman and Daniel R. Biddle
v.
JUDICIAL INQUIRY AND REVIEW BOARD



The opinion of the court was delivered by: POLLAK

 LOUIS H. POLLAK, District Judge.

 The defendant Board has filed a notice of appeal and has petitioned this court, pursuant to Federal Rule of Civil Procedure 62(c), for a stay of the February 22 Order pending appeal. *fn1" Plaintiffs' response to the motion for a stay pending appeal acquiesces in the motion except insofar as it would delay public release by the Board of the transcript of the Board proceedings relating to Justice Rolf Larsen of the Pennsylvania Supreme Court. That transcript, plaintiffs contend, should be released forthwith.

 I. What A Court Must Consider In Determining When To Grant A Stay Pending Appeal

 Rule 62(c) provides in pertinent part as follows:

 
When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.

 The principles governing exercise of the discretion vested in the court by Rule 62(c) were set forth by Judge Harrison L. Winter in Long v. Robinson, 432 F.2d 977, 979 (4th Cir.1970): *fn2"

 
The legal principles by which an application for a stay of an order of a district court pending appeal is to be judged may be simply stated. The leading authority is Virginia Petroleum Jobbers Association v. Federal Power Commission, 104 U.S.App.D.C. 106, 259 F.2d 921 (1958) cited with approval in Permian Basin Area Rate Cases, 390 U.S. 747, 773, 88 S. Ct. 1344, 1363, 20 L. Ed. 2d 312 (1968). The principles set forth in the Virginia Petroleum Jobbers Association case appear to be the law of this circuit. Airport Commission of Forsyth County, N.C. v. Civil Aeronautics Board, 296 F.2d 95 (4 Cir.1961). They have subsequently been expressly adopted in the fifth and second circuits. Belcher v. Birmingham Trust National Bank, 395 F.2d 685 (5 Cir.1968); Eastern Air Lines, Inc. v. Civil Aeronautics Board, 261 F.2d 830 (2 Cir.1958). See also Pitcher v. Laird, 415 F.2d 743 (5 Cir.1969); Covington v. Schwartz, 230 F. Supp. 249 (N.D.Cal.1964), mod. and aff'd, 341 F.2d 537 (9 Cir. 1965). Briefly stated, a party seeking a stay must show (1) that he will likely prevail on the merits of the appeal, (2) that he will suffer irreparable injury if the stay is denied, (3) that other parties will not be substantially harmed by the stay, and (4) that the public interest will be served by granting the stay.

 Judge Winter's analysis is consistent with the way Rule 62(c) has been applied by judges in this circuit. In Evans v. Buchanan, 424 F. Supp. 875, 879-880 (D.Del.1976) aff'd as modified, 555 F.2d 373 (3d Cir.1977), cert. denied, 434 U.S. 880, 98 S. Ct. 235, 54 L. Ed. 2d 160 (1977), Judge Schwartz wrote:

 
The request for a stay is addressed to the sound discretion of the court. Coppedge v. Franklin County Board of Education, 293 F. Supp. 356, 362 (E.D.N.C.1968); Hobson v. Hansen, 44 F.R.D. 18, 21 (D.D.C.1968). As with any exercise of discretion, the court must balance the equities presented by the particular set of facts. Taylor v. Board of Education, 195 F. Supp. 231, 238 (S.D.N.Y.), aff'd 294 F.2d 36 (2d Cir.); cert. denied 368 U.S. 940, 82 S. Ct. [382], 383, 7 L. Ed. 2d 339 (1961). If a stay is granted, and the decision on the merits affirmed on appeal, enforcement of plaintiff's legal rights will have been substantially delayed. If, on the other hand, no stay is granted, but the Order is overturned on appeal, defendant already may have made irrevocable decisions in accordance with the subsequently vacated court order.
 
The party seeking the stay must show that: 1) it likely will prevail on the merits of the appeal; 2) it will suffer irreparable injury if the stay is denied; 3) other parties will not be substantially harmed by the stay and 4) that no harm will be done to the public interest. Reserve Mining Co. v. U.S., 498 F.2d 1073, 1076-77 (8th Cir.); application to vacate stay denied, 419 U.S. 802, 95 S. Ct. 287, 42 L. Ed. 2d 33 (1974); Bauer v. McLaren, 332 F. Supp. 723, 729 (S.D.Iowa 1971); Friends of the Earth v. Armstrong, 360 F. Supp. 165, 195 (D.Utah), vacated on other grounds, 485 F.2d 1 (10th Cir.1973), cert. denied 414 U.S. 1171-72, 94 S. Ct. 933, 39 L. Ed. 2d 120 (1974).

 In Halderman v. Pennhurst State School & Hospital, 451 F. Supp. 233, 235 (E.D.Pa.1978), Judge Broderick followed the same approach: *fn3"

 
It is well settled by the case law that a party seeking the stay of a judgment order must show (1) that it will likely prevail on the merits of the appeal, (2) that it will suffer irreparable injury if the stay is denied, (3) that other parties will not be substantially harmed by the stay, and (4) that the public interest will be served by granting the stay. Philadelphia Counsel of Neighborhood Organizations v. Adams, 451 F. Supp. 114 (E.D.Pa.1978); Long ...

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