Effect of a Stay


A stay is an act of temporarily stopping a judicial proceeding through the order of a court.  There are two main types of stays: a stay of execution and a stay of proceedings.  A stay of execution postpones the enforcement of a judgment against a litigant who has lost a case, called the Judgment Debtor and a stay of proceedings is the stoppage of an entire case or a specific proceeding within a case.  This type of stay is issued to postpone a case until a party complies with a court order or procedure.  A court may stay a proceeding for a number of reasons. One common reason is that another action is under way that may affect the case or the rights of the parties in the case.

Although the mere taking of an appeal generally does not operate to stay enforcement of or execution upon, a judgment, in some jurisdictions it is provided by statute that the mere filing of a notice of appeal operates to stay execution upon the judgment, without any judicial action, or that execution on a judgment is stayed pending appeal where the appellant is the state, a political subdivision thereof, or an agency or officer of either.

An appeal to the United States Supreme Court does not act as a stay[i].  However, the execution and enforcement of a final judgment or decree which is subject to review by the U.S. Supreme Court on writ of certiorari may be stayed for a reasonable time to enable the party aggrieved to obtain such a writ.  Where, pursuant to statute, an appeal has the effect of a stay, in such cases, an application for supersedeas will be denied as unnecessary.

The court to which application for a discretionary stay of a judgment should be made is generally determined by statute or rule.  In a federal case, an application for a stay of a judgment, or suspension of an injunction, pending appeal, must ordinarily be made in the first instance to the district court[ii].  If an application to the district court is impracticable, or if the district court has denied the motion or failed to afford the relief requested, a motion for relief pending appeal may be made to the court of appeals or a judge thereof[iii].

In any case in which the final judgment or decree of any court is subject to review by the United States Supreme Court on writ of certiorari, the execution and enforcement of the judgment or decree may be stayed for a reasonable time to permit the aggrieved party to obtain a writ of certiorari from the Supreme Court.  The stay may be granted by a judge of the court rendering the judgment or decree[iv], or by a Justice of the Supreme Court.  When the Supreme Court is in session, a circuit Justice to whom an application for a stay has been submitted may refer it to the Court, but when such an application is presented to a Justice when the Court is in summer recess, and the Justice does not deem justified in requesting that the Court be convened in special session to address the application, the Justice has the duty to act on the application.

A United States District Court does not possess the authority to stay the executional enforcement of a judgment of a United States Court of Appeals.  Although federal law provides that a stay pending application to the United States Supreme Court for a writ of certiorari may generally be obtained in any case where the final judgment or decree of a court is subject to review by the Supreme Court on writ of certiorari, the statute so providing has been construed to vest authority to grant such a stay of a court of appeals judgment with the court of appeals or the United States Supreme Court only[v].  The power of a district court to grant a stay of judgment pending appeal terminates when the court of appeals issues its mandate, so only a judge of the court of appeals or a Justice of the Supreme Court can stay the execution or enforcement of the court of appeals’ judgment. For instance, where a district court’s decision is reversed and remanded for the award of appropriate relief, the judgment sought to be reviewed is that of the court of appeals, not the district court, so the district court is without jurisdiction to grant a stay of the judgment[vi].

Even apart from any specific statutory provision, an appellate court may in its sound discretion stay or supersede a judgment pending review.  However, the right to obtain a stay or supersedeas may be limited by statute to particular types or classes of cases or judgments.

[i] Meeker v. Stuart, 188 F. Supp. 272 (D.D.C. 1960)

[ii] USCS Fed Rules App Proc R 8

[iii] USCS Fed Rules App Proc R 8

[iv] 28 USCS prec § 2101

[v] Harris v. City of Virginia Beach, 923 F. Supp. 869 (E.D. Va. 1996)

[vi] Mister v. Illinois C. G. R. Co., 680 F. Supp. 297 (S.D. Ill. 1988)