ADMINISTRATIVE STAYS: POWER AND PROCEDURE.

• Author: Bayefsky, Rachel

INTRODUCTION 1942 I. ADMINISTRATIVE STAYS: THE LAY OF THE LAND 1947 A. Stays in General 1947 B. Administrative Stays 1951 1. Connection to Another Form of Emergency Relief 1951 2. Temporal Aspect of Administrative Stays 1952 3. Relationship to the Traditional Stay Factors 1953 4. Preserving the Status Quo 1957 5. Political Context of Administrative Stays 1958 II. AUTHORITY TO ISSUE ADMINISTRATIVE STAYS 1960 A. Legal Bases for Administrative Stays 1960 1. The All Writs Act 1960 2. Inherent Docket-Management Power 1962 B. Administrative Stays and Federal Equity Power 1964 III. ADMINISTRATIVE STAYS: A PROPOSAL 1968 A. Interests to Guide Administrative Stay Determinations 1968 B. Options for Administrative Stays 1969 C. Proposed Standards for Administrative Stays 1972 1. Procedural features 1972 2. Substantive standards 1974 D. Application to Examples 1979 1. Asylum Eligibility Case 1979 2. Abortion Restrictions during the Pandemic 1981 CONCLUSION 1983 INTRODUCTION

Federal courts issue "administrative" or "temporary" stays of litigation to freeze legal proceedings until the court can rule on a party's request for expedited relief. Say that a party loses in district court and fdes an appeal. The appellant may seek a stay of the district court's judgment pending appeal. The appellant may argue that the district court's judgment will violate fundamental rights or destroy property that is difficult to value; thus, a stay pending appeal is needed to prevent "irreparable harm." The court deciding whether to grant a stay pending appeal must consider factors such as the likelihood that the stay applicant will succeed on the merits and the prospect of irreparable harm to the stay applicant. (1) The judges may wish to spend some time considering these factors. Therefore, the court may issue an "administrative" or "temporary" stay of the district court's judgment while the motion for a stay pending appeal is under review.

The decision whether to grant or deny an administrative stay has real-world stakes. During the coronavirus pandemic in the spring of 2020, for example, the Governor of Texas issued an executive order postponing various medical procedures without exempting abortion. (2) Abortion providers challenged the executive order in federal court as a constitutional violation, and the federal district judge twice blocked enforcement of the order as applied to abortion procedures. (3) Each time, Texas officials appealed to the U.S. Court of Appeals for the Fifth Circuit, seeking expedited relief overturning the district judge's order. The Fifth Circuit issued administrative stays of the district court's decisions. (4) One such stay had a carve-out for women who would be pushed past the legal limit for abortion in Texas during pendency of the Governor's executive order. (5) Portions of the Fifth Circuit's two administrative stays lasted nineteen days in total and, each time, preceded a grant of interim relief blocking or narrowing the district court's rulings. (6) Ultimately, the case was mooted by issuance of a new executive order. (7)

Both supporters and detractors of the Fifth Circuit's administrative stays pointed to serious consequences of the decision whether to employ the device. Judge James L. Dennis, dissenting from a decision in which his colleagues voted to maintain an administrative stay, protested that the district court had "found that temporarily barring [abortion providers] from performing these procedures would permanently deny many people the fundamental bodily autonomy to which they are constitutionally entitled and subject many more to greatly increased financial costs and elevated risk to their health, safety, and general well-being." (8) By contrast, the Texas officials argued that an administrative stay was needed "to preserve the State's power to combat the worst public-health emergency in over a century." (9)

The Texas executive order case is just one in which courts deciding whether to enter an administrative stay must confront arguments about the substantial practical effects of their rulings. The Ninth Circuit in September 2020, for example, declined to issue an administrative stay of a district court's injunction preventing the Trump administration from setting an earlier date for the end of data collection for the decennial census. (10) "Given the extraordinary importance of the census," the Ninth Circuit explained, "it is imperative that the [Census] Bureau conduct the census in a manner that is most likely to produce a workable report in which the public can have confidence." (11) Judge Patrick Bumatay, in dissent, urged that the Ninth Circuit should have issued an administrative stay to blunt the effects of a ruling by an "adventurous district court" that "injected itself into a sensitive and politically fraught arena: the 2020 census." (12)

There is evidence that administrative stays are becoming both more common and more contentious, as they are applied in fast-moving cases involving topics such as election rules and pandemic restrictions. (13) Perhaps the most high-profile recent controversy over the stakes of granting or denying an administrative stay comes from litigation over another Texas abortion-related law, S.B. 8. Passed in 2021, S.B. 8 bans physicians from performing abortions upon detection of a fetal heartbeat and authorizes private citizens to sue to enforce the law. (14) After initially declining to enjoin the law, the Supreme Court, on October 22, 2021, set constitutional challenges to S.B. 8 for argument on November l. (15) Justice Sotomayor, dissenting in part, argued that the Court should have "stay[ed] administratively the Fifth Circuit's order" while the case was being heard. (16) Injustice Sotomayor's view, S.B. 8's presence was causing "irreparable harm" to women seeking abortions. (17) "Whatever equities favor caution in staying a state law under normal circumstances," Justice Sotomayor wrote, "cannot outweigh the total and intentional denial of a constitutional right to women while this Court considers the serious questions presented." (18)

Despite the impact of federal courts' decisions to grant or withhold an administrative stay, there is little scholarly or judicial discussion of the inquiry that courts should undertake when making these decisions. The Supreme Court has not provided much guidance on the conditions under which it will grant an administrative stay--and, with a few exceptions, neither have the federal courts of appeals. (19) Although scholars have become more interested in emergency orders and the Supreme Court's emergency or "shadow" docket, (2)" they have not yet turned their attention to the approach that federal courts ought to take toward administrative stay requests. (21)

The issue of when federal courts should grant administrative stays raises both conceptual and practical questions. How exactly does an "administrative" stay differ from a "regular" stay pending appeal? To what extent should federal courts imposing administrative stays consider the factors that govern the entry of stays pending appeal in general--notably the likelihood of success on the merits? (22) Sometimes administrative stays are described as devices meant simply to preserve the status quo for a brief period while the court adjudicates a motion for a stay pending appeal. (23) But that description is not straightforward. First, it is not always easy to ascertain what counts as the status quo. (24) Is it the state of affairs that would have existed absent the district court's judgment--for example, in the Texas pandemic case described above, the situation in which the Texas Governor's order barring certain abortions was effective? Or is it the state of affairs that exists in light of the district court's judgment? Second, the temporary aspect of administrative stays raises issues about how long they are to last. A recent Ninth Circuit administrative stay of a district court's order requiring Los Angeles to make significant changes to its homelessness policies lasted over four months; (25) another Ninth Circuit administrative stay, in a case involving federal officers' policing practices, lasted one-and-a-half months. (26) Is there a basis for suggesting that these administrative stays lasted too long?

All these questions raise the issue of whether administrative stay procedures lead to more contentious short-fuse litigation instead of lowering the temperature in emergency proceedings. The label "administrative" stay may be read to imply that these devices are ministerial, routine, or value-neutral. But administrative stays actually require courts to make significant and potentially value-laden choices in a short period of time.

Further, tied up with questions about the appropriate standard for granting or denying administrative stays are issues about federal courts' authority for issuing such relief. Do federal courts have a statutory basis to impose administrative stays, or are they exercising inherent equitable or docket-management powers? The source of legal authority could affect the standard for granting an administrative stay. For example, if one views administrative stays as exercises of traditional equitable powers and takes a historical approach toward these powers, (27) then federal courts' authority to grant administrative stays may be bounded by historical practice.

These kinds of questions are currently unanswered; indeed, they are rarely even asked. Accordingly, this Article's first aim is to shed light on courts' practices in the area of administrative stays. (28) The Article's second aim is to explore the legal basis for administrative stays and the interests that should guide courts in exercising their authority in this area. Federal courts, the Article indicates, have the power to issue administrative stays under their inherent authority to control their dockets and the All Writs Act. The Article identifies interests that properly guide...