Filing a non-capital stay application in the United States Supreme Court is an opaque process. A form of "emergency" application, stay applications are borne of urgent circumstances. Haste is of the essence. Especially under these pressured conditions, deciphering the rules to identify the correct procedures for a high court stay application can be difficult and confusing. This article explores some of the practical and procedural considerations you should keep in mind when applying for a non-capital stay from the Court – or more precisely, when filing an application for a temporary stay of the decision below pending the timely filing and disposition of a petition for a writ of certiorari. This article primarily focuses on unpacking the governing rules, illuminating the Court's docketing and review process, and underscoring the importance of seeking relief from the court below. Because the substantive standards for a stay are discussed amply elsewhere, this discussion only summarizes the relevant criteria.
Filing Mechanics and Form
Rule 22 – A Glimpse Behind the Scenes
Stay applications, as an initial matter, are filed with the Clerk and addressed to the individual Justice "allotted to the Circuit from which the case arises." S. Ct. R. 22.3, 28.1. In contrast to the dozens of copies required for filing a cert petition, the rules only oblige an original and two copies of a stay application, plus proof of service conforming to Rule 29. S. Ct. R. 22.1.
Once the "Emergency Applications" Attorney on staff in the Clerk's office processes the application into the system (more on that later), he or she transmits it "promptly to the Justice concerned." S. Ct. R. 22.1. An application filed in the morning may well be in chambers that afternoon. While individual Justices' review processes vary, they share one interesting feature: the stay application will not detour through a pool clerk or other career staffer on its way to chambers. Curiously, this means that if you attach a draft of the underlying cert petition as an exhibit to your stay application, it has a greater shot of being seen by a Justice's actual clerk than when reviewed through the normal cert pool process, with the obvious exception of stay applications addressed to a Justice abstaining from the pool. (Recognize, however, that doing so will also grant your opponents a preview of your cert petition's arguments.)
Generally speaking, you should expect to hear the Justice's decision within a few days. If the Justice does not deny the stay application outright, it is a standard practice – though by no means a rule – for the Justice to call for a response before granting a stay. The Clerk's office will call directly each party's counsel of record with a schedule. The Rule also provides that the Justice might refer the stay application "to the Court for determination." S. Ct. R. 22.6. In that eventuality, the Justice might also issue a temporary stay while that process moves forward. For example, on June 6, 2009, Justice Ginsburg issued a temporary stay in the matter of Indiana State Police Pension Trust v. Chrysler LLC, No. 08A1096, which concerned the bankruptcy sale of Chrysler to the Italian automaker Fiat. She then referred the matter to the full Court, which promptly denied the application on June 9, 2009.
Ordinarily, the Court neither expects nor permits a response to a stay application unless requested by the reviewing Justice. For those who would oppose the stay application, that rare call for a response might result in a catastrophically short deadline. In another recent example, a group of anonymous applicants successfully secured a temporary stay of a Ninth Circuit decision that would have allowed Washington State officials to release the names of people who signed a ballot measure on gay rights legislation. John Doe v. Reed, No. 09A356 (Oct. 20, 2009). Witness the dizzying speed at which this process occurred. Justice Kennedy received the application on Friday, October 16, 2009. That same day, the Justice called for a response – to be filed by 3 pm the following Monday, only three days later. On October 19th, the day the response was due, Justice Kennedy issued an initial temporary stay, then referred the application to the whole court. On Tuesday, just four days after the stay application was submitted, the full Court granted the stay pending the filing and disposition of a petition for a writ of certiorari. Sixteen days later, on November 5, 2009, the petitioners filed their cert petition.
A Cautionary Note About Applications on Resubmission
If a Justice denies your application, the rules permit you to "renew it to any other Justice," although the Rule cautions that "a renewed application is not favored." S. Ct.R. 22.4. But recognize that the phrase "not favored" is an understatement. Justice Douglas had a penchant for granting resubmitted stay applications, and even those decisions were usually vacated by the full court. In recent decades, it is a reliable principle that one Justice will not disturb another Justice's decision on a stay application. Eugene Gressman, et al.; SUPREME COURT PRACTICE, § 17.12 (9th ed. 2007).
Technically the resubmission is directed to a second Justice – a formality likely to trigger irksome media speculation about the leanings of the Justice in question. Functionally, however, the resubmission is a request for full Court review of the denied application, as it is the current practice of Justices to refer the resubmitted application automatically. By way of illustration, unlike the original application, which is filed with a mere two copies, the resubmitted application is filed with ten copies of the original application. S. Ct. R. 22.4. The resubmitted and referred application will then be calendared for the next available conference. A majority vote of the participating Justices is required to grant it, which in most circumstances, means the vote of five Justices (in contrast to the four votes required for cert). SUPREME COURT PRACTICE, § 17.10.
Note that resubmission is not a second chance to tinker with your stay arguments; you must resubmit the identical application. However, you may supplement the application with information relating to changed factual circumstances. For example, if your cert petition has been filed between the original submission and resubmission, you may so note in the transmittal letter to the Clerk and provide copies of the newly filed petition for the Justices' review.
Rules 33.2 & 34 – Form
Unlike the booklet format of cert petitions, stay applications fall under Rule 33.2, which is the 8 ½- x 11-inch format, "stapled or bound at the upper left hand corner." Notice that there are no page or word limits for stay applications. Absent a rule, you will be faced with a tactical conundrum regarding your application's length. On the one hand, a short filing (which rarely should exceed approximately 20-25 pages) is digestible, especially if you already have your cert petition drafted and the draft can be appended as an exhibit. A longer filing might signal that the error at issue is not especially clear, and that if it takes so long to explain why you need a stay, you probably should not get one. On the other hand, a longer filing allows you to illuminate the complexities of the situation and to illustrate their urgency.
Similarly, there are no specific rules on the form or number of discretionary exhibits, other than requiring that any appendix be presented in a double spaced format. You should exercise caution in selecting discretionary exhibits beyond those required by Rule 23.3 (discussed below). Recall that the exhibits will not be bound neatly in a slim printed volume, and increasing the volume of exhibits is not a desirable tactic. If you must rely upon a substantial amount of record material to substantiate your position, consider citing to the record below rather than taxing chambers with a heavy stack of appended excerpts.
You should also consult Rule 34 for general requirements relating to captions and table preparation. Note that Rule 34.1(a) requires space for a docket number. Because the Clerk's office numbers all stay applications on the "A" docket, the docket number portion of the caption should appear as "A___".
Best Practices For A Smooth Filing
Above all, do not surprise the Clerk's office with a stay application. If possible, at least one business day before you file, call the office (202-479-3000) and ask for the Emergency Applications Attorney. By consulting with the office in advance, you will enable it to prepare your Justice's chambers to expect an application requiring speedy review. You will also open a channel of communication that will be vital on filing day.
Roughly ninety percent of all stay applications are filed through the United States Postal Service. Avoid this method and try to arrange for hand-delivery instead. USPS filing will delay your application by several days: on top of the travel time through the mails, you will need to calculate at least one additional day's delay as Court security screens the package. Even hand-delivery can lead to unexpected delays if you are not careful. Whether it is a commercial carrier, local counsel, or a DC-based law school buddy doing you a favor, whoever delivers the papers to Court security must ensure that the papers are not sealed in any kind of envelope or box. Only papers open to the security guards' inspection (also known as an "open box" filing) have the potential to reach chambers that same day. Otherwise, security protocols require papers that have been sealed in a box or envelope to be sent off-site for screening – which likewise translates into at least a day's delay. While the reviewing Justice will not be aware of which filing method you selected, the sooner you get the application into the Justice's hands, the more urgency you convey.
On the day of filing, call the Emergency Applications Attorney and notify him or her that the papers are on their way. Call again when the papers have been filed. This way, the attorney will be on the lookout for your papers, and where appropriate, may even proactively arrange for them to be brought up from security. The ideal time of day to file a stay application is mid-morning. Otherwise, the transmittal of your papers from security to the Clerk's office risks delays caused by the shifting of the guard.
Finally, the transmittal letter should make the Emergency Applications Attorney's job easier. As previously noted, that attorney must process a certain amount of information into the docket before sending the papers up to chambers. Distilling that information into the cover letter obviates the attorney's need to waste time digging through your application and exhibits, and in some cases, their need to conduct independent research on the status of the lower court's docket.
Generally, the attorney processing the application verifies that the Court has jurisdiction over the underlying case. Thus, the cover letter should include (1) the identity of the Justice to whom you are directing the application, (2) the nature of the relief sought, (3) docket information for the lower court Order and/or opinion you are seeking to stay, including the date, (4) the date of any rehearing denial, (5) how you have complied with
Rule 23.3 (discussed further below), such as the date that the court below denied a stay pending review and disposition of a petition for certiorari, and (6) if applicable, the date that a petition for certiorari was filed and its status. For the information pertaining to lower court Orders or docket entries, identify in the cover letter where in the appendix or among the exhibits those materials can be found. Do not omit any of these Orders from your filing; the Emergency Applications Attorney will not docket your application until he or she has clarified the status of those Orders. If you have omitted that information, he or she may even research the case on the lower court docket to ascertain that you have complied with the relevant rules. Finally, the attorney will verify that the application has been signed by a member of the Supreme Court Bar.
Rule 23.3 – First Seek Relief From The Lower Court
Rule 23.3 requires the application to identify "the judgment sought to be reviewed" and append "a copy of the order and opinion, if any." In addition, and more importantly, absent "the most extraordinary circumstances" a stay application "will not be entertained unless the relief requested was first sought in the appropriate court or courts below." S. Ct. R. 23.3. In other words, you cannot seek a stay from the United States Supreme Court until you have sought a stay from (most likely) the selfsame court that issued the order or opinion that you are hoping to get reversed on cert. Failure to comply with Rule 23.3 is a basis for denying a stay.
The rule requires that you append a copy of the lower court's order denying the stay. If an Order reflecting the denial is unavailable at the time you file your application, a copy of the docket entry reflecting the denial will suffice, or a recitation of why the Order is not attached combined with a summary of the action below. SUPREME COURT PRACTICE, § 17.9. As discussed above, you should identify how you have complied with Rule 23.3 in the cover letter to the Clerk, and explain where in the application you have substantiated your compliance with the rule. While the Supreme Court's rules do not require the filing of a petition for certiorari prior to your stay application, note that some state courts do impose that requirement before they will grant a stay pending the cert petition's disposition. Id.
The Supreme Court's rules provide no deadlines governing stay applications. Ideally, your Supreme Court stay application should be drafted and ready to file by the time the lower court denies the application for temporary relief. Once the lower court's decision has been rendered, do not wait more than a few days before filing your Supreme Court stay application.
When seeking relief from the lower court, consider asking in the alternative for a stay that endures at least as long as it takes for the United States Supreme Court to review a subsequent stay application. While this lesser relief is not ideal, it blunts the edge of urgency for those reviewing the application at the United States Supreme Court. And such a limited stay might even buy you that extra bit of time to get your cert petition filed without becoming moot during the stay review process.
Finally, you should either append or integrate your jurisdictional statement showing that the Court has jurisdiction to review the decision below. SUPREME COURT PRACTICE, § 17.9. Anecdotal evidence suggests that a sufficiently interested Justice may request a copy of the draft jurisdictional statement, so drafting it should be a priority. You may also request that the Justice treat your application in the alternative as a cert petition, though in most cases you will probably wish to file a more polished petition. In that event, of course, the application would have to be referred to the full Court, since only the Court (or more precisely, four Justices of the Court) may actually grant certiorari.
A Short Note on Substantive Considerations – Criteria For a Stay
Now, a few words about substance. A full discussion of the substantive criteria for a stay is beyond this article's scope. See generally SUPREME COURT PRACTICE § 17.13; see also Rapp, Cynthia (ed.), A COLLECTION OF IN CHAMBERS OPINIONS BY THE JUSTICES OF THESUPREME COURT OF THE UNITED STATES, (Green Bag Press, 2004).Rule 23 recognizes that a Justice may grant a stay "as permitted by law," see Rule 23.1,"[a] party to a judgment sought to be reviewed" will most likely seek "to stay theenforcement of that judgment" pursuant to 28 U.S.C. § 2101(f). See Rule 23.2. The statute provides that a Justice may stay the mandate, or execution and enforcement of a judgment for a reasonable time while the aggrieved party seeks a writ of certiorari.
The criteria governing the issuance of a stay pending certiorari tracks the familiar requirements for an injunction. The Court considers "whether the applicant has demonstrated '(1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari or to note probable jurisdiction; (2) a fair prospect that a majority of the Court will conclude that the decision below was erroneous; and (3) a likelihood that irreparable harm will result from the denial of a stay.'" Indiana State Police Pension Trust v. Chrysler LLC, 129 S. Ct. 2275, 2279 (2009) (per curiam) (quoting Conkright v. Frommert, 129 S. Ct. 1861, 1862 (2009) (Ginsburg, J., in chambers)). The "fair prospect" test asks whether "plausible arguments exist for reversing the decision below and [whether] there is at least a fair prospect that a majority of the Court may vote to do so." See California v. American Stores Co., 492 U.S. 1301, 1306 (1989) (O'Connor, J., in chambers). In a close case, the Court may also consider whether (4) the balance of the equities justifies a stay. Chrysler, 129 S. Ct. at 2276. As a general practice it is prudent to pull the particular Circuit Justice's individual "in chambers" opinions accompanying the grant or denial of stay applications, which can provide a rough guide to how the Justice has dealt historically with these considerations in a variety of fact-bound circumstances.
Ultimately, it is a bit tough to file a U.S. Supreme Court stay application with a straight face. After all, the Court grants less than one percent of petitions for certiorari annually. With those slender odds, the very idea that a Justice would agree that your particular petition has a "reasonable probability" of swaying four cert votes seems an almost laughable proposition. And yet, as the substantive criteria suggest, that is a large part of your task when seeking a stay.
While a U.S. Supreme Court stay application is a species of "emergency" application, the process can run reasonably smoothly – if you take advantage of every opportunity to plan ahead. If you have any reason to predict that a lower court's adverse ruling might prompt the need for a high court stay application, immediately begin familiarizing yourself with the requisite rules and procedures. In particular, anticipate Rule 23.3's obligations and review the lower court's requirements for securing a stay pending the filing and disposition of a cert petition. To the extent feasible, start mapping out the jurisdictional statement for your cert petition and the shell of your stay application. And with a bit of luck, perhaps your application will be one of the few that are granted.
Ms. Chanoine is an associate in Mayer Brown LLP's Supreme Court & Appellate Group in New York (firstname.lastname@example.org). Prior to joining Mayer Brown, Ms. Chanoine served as an attorney in the Federal Programs Branch of the Department of Justice, (Civil Division) through the Attorney General's Honors Program. Ms. Chanoine clerked for the Hon. Sonia Sotomayor on the Second Circuit Court of Appeals.