Supersedeas and Stay of Proceedings on Review

The appellate court reviewing an agency decision may also stay agency proceedings.  Supersedeas is a writ containing a command to stay legal proceedings.  Filing of a notice of appeal or a petition does not itself stay enforcement of an agency action.  If the agency action has the effect of suspending or revoking a license, a stay or supersedeas should be granted as a matter of right.  Stay is granted only when the reviewing court determines that a stay or supersedeas would not constitute a probable danger to the public health, safety, or welfare.  However, the court will stay an agency proceeding, only when a petition is filed by the party for stay of agency proceedings.  Granting stay is the discretion of a court.  Stay is granted on appropriate terms.[i] Moreover, stay granted to an agency proceeding is a jurisdictional issue and waiver is not allowed.  When a party aggrieved by an administrative order approaches two or more federal courts, any of the court may stay the administrative order.  There is also provision to modify, revoke or extend stay.[ii]

The determination of whether a stay of an agency’s order is warranted is based on a balancing of four factors.  These factors are:

  • the likelihood that the party seeking the stay will prevail on the merits of the appeal;
  • the likelihood that the moving party will be irreparably harmed in the absence of stay;
  • the prospect that others will be harmed if the court grants the stay; and
  • the public interest in granting the stay.

To justify the granting of a stay, a party need not always establish a high probability of success on the merits.  The four considerations are not prerequisites but, factors to be balanced, while granting stay.[iii]

In a pending administrative action review, a party can seek for stay either under federal rules or under Hobbs Act.  Ordinarily, party seeking review of administrative action shall first approach agency for stay of action.[iv] Whenever it is impracticable to approach agency, party can approach the court of appeal for stay,  The party approaching court for stay must show the reasons for the same.  When the agency denies stay or fails to provide the relief asked for, the party can approach court of appeal for stay.  The petition for stay should include:

  • the reasons for granting the relief requested;
  • the facts relied on;
  • originals or copies of affidavits or other sworn statements supporting facts subject to dispute; and
  • relevant parts of the record.

The party making motion shall give reasonable notice to all the other parties.  The motion is filed with the circuit clerk.  Usually, the decision is made by a panel of judges and in exceptional circumstances, it is decided by a single judge.  A stay is granted on filing a bond or other appropriate security.[v] However, under Hobbs Act, the federal court has discretion to restrain or suspend the operation of an agency decision.  The federal court can also order a temporary stay of 60 days, if irreparable damage will result to the petitioner.  The federal court is also empowered to continue the temporary stay or suspension, in whole or in part, until final decision.[vi]

Additionally, the agency also is empowered to stay agency’s action.  “when an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review”.[vii]

The court will deny the stay of agency action pending review provided:

  • agency action is suspended by agency itself;
  • agency action is subject to the approval of President;
  • agency action not permitted to review by statute;
  • review procedures in the court of appeals are fully adequate to protect a party’s rights; or
  • there is a complete absence of evidence

[i] Model State Administrative Procedure Act (1981 ed) § 5-111(a); Model State Administrative Procedure Act (1961 ed) § 15(c)

[ii] 28 USCS § 2112

[iii] Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150 (6th Cir. Mich. 1991)

[iv] Fed. R. App. P. 18

[v] Fed. R. App. P. 18

[vi] 28 USCS § 2349

[vii] 5 USCS § 705


Inside Supersedeas and Stay of Proceedings on Review