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FREETHOUGHT SOCIETY v. CHESTER COUNTY

April 8, 2002

FREETHOUGHT SOCIETY ET AL.
V.
CHESTER COUNTY ET AL.



The opinion of the court was delivered by: Stewart Dalzell, United States District Judge.

MEMORANDUM

On March 6, 2002, after a trial, we declared that defendants' keeping of their Ten Commandments plaque on the Chester County Courthouse facade violated the First Amendment, and permanently enjoined them from continued maintenance of that plaque. See Freethought Society v. Chester County, ___ F. Supp.2d ___, 2002 WL 342710 (E.D.Pa., Mar. 6, 2002). Having filed a notice of appeal of that decision, defendants thereafter filed a motion to stay our Order, and plaintiffs have filed their opposition to that motion.

Among other things, the parties joined issue on the factual question of irreparability of harm. We therefore held a hearing on that point, and heard argument, earlier today.*fn1

Governing Standard

A disappointed litigant in an equity case in federal court may seek what the Federal Rules of Civil Procedure describe as an injunction pending appeal. Specifically, Fed.R.Civ.P. 62(c) provides, in relevant part, that "[w]hen an appeal is taken from an interlocutory or final judgment granting . . . 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." Although defendants here have taken the normally jurisdiction-divesting action of filing a notice of appeal to the Court of Appeals, Fed.R.App.P. 8(a)(1)(A) and (C) provides that parties like defendants must first seek relief in the district court.*fn2 Rule of Appellate Procedure 8 provides:

(a) Motion for Stay.

(1) Initial Motion in the District Court. A party must ordinarily move first in the district court for the following relief:
(A) a stay of the judgment or order of a district court pending appeal;
(C) an order suspending, modifying, restoring, or granting an injunction while an appeal is pending.

Referring to these rules that "govern the power of district courts and courts of appeals to stay an order pending appeal", the Supreme Court in Hilton v. Braunskill, 481 U.S. 770, 776 (1987), established four common factors that regulate the issuance of stays:

(1) whether the stay applicant has made a strong showing that he 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 parties interested in the proceeding; and (4) where the public interest lies.

Id. (citations omitted). The "burden of meeting this standard is a heavy one," Wright & Miller, supra note 2 at 503-05.

We will now canvass the four ...


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