23-10362
On April 7, 2023, the district court entered an order staying the effective date of the 2000 Approval and each of the subsequent challenged actions.[1] The district court stayed its own order for seven days to allow the defendants time to appeal.
II.
FDA and Danco (“stay applicants” or “applicants”) ask us to stay the district court’s order pending appeal. Our power to grant a stay is inherent. See In re McKenzie, 180 U.S. 536, 551 (1901); Scripps-Howard Radio v. FCC, 316 U.S. 4, 10–14 (1942). It’s also statutory. See Fed. R. App. P. 8; 28 U.S.C. § 1651; 5th Cir. R. 27.3; see also 16A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3954 (5th ed. Apr. 2022 update).
But we grant stays “only in extraordinary circumstances.” Williams v. Zbaraz, 442 U.S. 1309, 1311 (1979) (Stevens, J., in chambers); see also Graves v. Barnes, 405 U.S. 1201, 1203 (1972) (Powell, J., in chambers) (same); Ruckelshaus v. Monsanto Co., 463 U.S. 1315, 1316 (1983) (Blackmun, J., in chambers) (same). This rule reflects the fact that “a stay is not a matter of right, even if irreparable injury might otherwise result.” Virginian Ry. Co. v. United States, 272 U.S. 658, 672 (1926). Instead, a stay requires “an exercise of judicial discretion.” Ibid. A “decree creates a strong presumption of its own correctness,” which often counsels against a stay. Id. at 673.
- ↑ As both parties recognize, this order would have the practical effect of an injunction because it would remove mifepristone from the market. Plaintiffs filed a motion to dismiss applicants’ appeal on the theory that § 705 stays are not sufficient to trigger our interlocutory appellate jurisdiction under 28 U.S.C. § 1292(a). We disagree. See Abbott v. Perez, 138 S. Ct. 2305, 2319–20 (2018) (explaining that the “practical effect” test of 28 U.S.C. §§ 1292(a)(1) and 1293 “prevents [the] manipulation” that could occur “if the availability of interlocutory review depended on the district court’s use of the term ‘injunction’”).
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