23-10362
The Supreme Court has prescribed “four traditional stay factors” that govern this equitable discretion in most civil cases. Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2487 (2021) (quotation omitted); see also Hilton v. Braunskill, 481 U.S. 770, 776–77 (1987); Rose v. Raffensperger, 143 S. Ct. 58, 59 (2022) (reversing stay of an injunction after the court of appeals failed to analyze the traditional stay factors). Those factors are:
(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.
Nken v. Holder, 556 U.S. 418, 426 (2009) (quoting Hilton, 481 U.S. at 776); see also Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2495 (2021). Although no factor is dispositive, the likelihood of success and irreparable injury factors are “the most critical.” Nken, 556 U.S. at 434. Success on either factor requires that the stay seeker make a strong not merely “possib[le]” showing. Ibid.
In these respects, stays might appear identical to preliminary injunctions. Similar factors govern both and both require an “extraordinary” deployment of judicial discretion. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 24 (2008). But the two are not “one and the same.” Nken, 556 U.S. at 434. A stay “operates upon the judicial proceeding itself,” not on the conduct of a particular actor. Id. at 428. And, once one party has won an injunction, proof burdens reverse. It is the enjoined party who seeks a stay, or FDA and Danco here, who must carry the burden of proving that the Nken factors command us to issue one. See Landis v. N. Am. Co., 299 U.S. 248, 255 (1936).
If the stay applicants show that circumstances require a stay of some but not all of the district court’s order, we may, in our discretion, “tailor a stay so that it operates with respect to only some portion of the proceeding.”
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