The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Can You Appeal An Administrative Stay By A District Court?
The latest innovation in litigation is a district court administrative stay. Traditionally, circuit courts have issued administrative stays to pause a lower court injunction. In other words, the appellate court is staying some lower-court ruling. But in recent weeks, several district courts have issued administrative stays. Stays of what you might ask? Stays of some executive action. This nomenclature is a perversion. Courts stay judicial rulings and enjoin government actions. Courts cannot stay an executive order or statute anymore than an appellate court can enjoin a lower court.
Such an administrative stay sounds an awful lot like a TRO. But these stays have been granted without regard to likelihood of success on the merits. These judges have simply granted administrative stays to "maintain the status quo." At least in theory, these temporary stays are meant to give the court adequate time to resolve a complex issue. What is the basis for such an administrative stay? If there is such authority, it has to be the All Writs Act. But I am still uncertain on this point.
Now, there is a new innovation. President Trump removed Hampton Dellinger, the Special counsel of the Office of Special Counsel (and son of the late, great Walter Dellinger). On February 10, Judge Amy Berman Jackson (DDC) granted an administrative stay to block the removal for a few days. The Trump Administration tried to appeal that administrative stay. On February 12, Judge Jackson ruled that such an appeal is "frivolous," she retains jurisdictions, and now enters a TRO.
Defendants' appeal of the administrative stay did not divest this Court of jurisdiction to consider the instant motion. Only "a non-frivolous appeal from the district court's order divests the district court of jurisdiction over those aspects of the case on appeal." Bombadier Corp. v. Nat'l R.R. Passenger Corp., No. 02-7125, 2002 WL 31818924, at *1 (D.C. Cir. 2002), citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). A motion is "frivolous" when its disposition is obvious and the legal arguments are wholly without merit. Reliance Ins. Co. v. Sweeney Corp., 792 F.2d 1137, 1138 (D.C. Cir. 1986). It is well-settled that even a temporary restraining order "is not generally appealable," Adams v. Vance, 570 F.2d 950 (D.C. Cir. 1978), and that principle applies to the brief administrative stay entered to preserve the status quo. See Griggs, 459 U.S. at 58 ("[N]otice of appeal from unappealable order does not divest district court of jurisdiction."), citing Ruby v. Sec'y of the U.S. Navy, 365 F.2d 385, 389 (9th Cir. 1966).
Has any court ever held that a brief administrative stay by a district court cannot be appealed? Griggs certainly didn't say that. The See signal in that citation cannot possibly bear the weight of that inference.
Can you not appeal an administrative stay? Is it really the case that a district judge can issue an unappealable order? Can the judge control the federal government without any appellate review? Or is it that mandamus is the only available process, as with a TRO? Then again, the basis for seeking mandamus turns on the usual TRO factors; how would that work with an automatic administrative stay to simply maintain the status quo? What would the government argue? That the status quo should not be maintained?
I think judges are getting a bit creative with this administrative stay business. Meanwhile, in New York v. Trump, the First Circuit declined to grant an administrative stay of Judge McConnell's ruling on the funding case. The panel cited the uncertainty about administrative stays.
The sole motion we address in this order is the motion for an administrative stay. This Circuit has not addressed whether or when an administrative stay of the sort being requested here may be issued, and there is well-recognized uncertainty as to what standards guide the decision to issue one or not. SeeUnited States v. Texas, 144 S. Ct. 797, 798 (2024) (Barrett, J., concurring). Here, the defendants have requested a stay pending appeal from the District Court, which has not yet ruled on their motion. See Fed. R. App. P. 8(a)(1)(A) ("A partymust ordinarily move first in the district court for… a stay of the judgment or order of a district court pending appeal…."); id. 8(a)(2)(A)(ii) (requiring, in the absence of a showing that "moving first in the district court would be impracticable," that the party moving for a stay pending appeal must "state that… the district court denied the motion or failed to afford the relief requested and state any reasons given by the district court for its action"). Moreover, a centerpiece of the dispute between the parties in this appeal concerns the proper way to construe the February 10 Order. Finally, insofar as we have jurisdiction to consider this request for an administrative stay arising out of a temporary restraining order, cf.Off. of Pers. Mgmt. v. Am. Fed'n of Gov't Emps., AFLCIO, 473 U.S. 1301, 1306 (1985) (Burger, C.J., in chambers) ("[S]ince the Court of Appeals was without jurisdiction over the appeal from the District Court's order denying the temporary restraining order, the motions panel was necessarily without authority to grant such a stay."), the defendants do not cite any authority in support of their administrative stay request or identify any harm related to a specific funding action or actions that they will face without their requested administrative stay. In these circumstances, we assume we have jurisdiction, seeDoe v. Town of Lisbon, 78 F.4th 38, 44-45 (1st Cir. 2023), and deny the motion for an administrative stay without prejudice. We are confident the District Court will act with dispatch to provide any clarification needed with respect to, among other things, the defendants' contention that the February 10 Order "bars both the President and much of the Federal Government from exercising their own lawful authorities to withhold funding without the prior approval of the district court." We note in this regard the plaintiffs' statement in their Opposition to Defendants' Motion for Administrative Stay Pending Appeal that, consistent with the TRO, the February 10 Order "does not stop defendants from limiting access to funds without any 'preclearance' from the district court 'on the basis of the applicable authorizing statutes, regulations, and terms.'" The parties may file any further memoranda in support of their positions on the motion for a stay pending appeal in this court by 5:00 PM on Thursday, February 13, 2025. [25-1138] (AL)
Why would New York bring a law suit in Rhode Island? Does anyone care about forum shopping anymore? Judge McConnell, you may recall, was a close ally of Senator Sheldon Whitehouse.
There you have it. District court judges enter administrative stays, but circuit courts decline to get them. We are through the looking glass.
Justice Barrett was bothered by administrative stays in the Circuit Courts. I think she will be perplexed by them in the District Court. And this practice may get shut down soon.
