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CONKRIGHT et al. v. FROMMERT et al.

Supreme Court of the United States2009-04-30No. No. 08A884 (08-810)
556 U.S. 1401

Summary

Holding. The request for a stay of the Second Circuit's mandate is denied. The invitation to the Solicitor General to submit views, while relevant to assessing the likelihood of certiorari, does not overcome the applicant's failure to establish irreparable harm and does not warrant a departure from the initial denial of the stay application.

The administrator of the Xerox Corporation Pension Plan sought a stay of a Second Circuit Court of Appeals decision while pursuing review in the Supreme Court. The applicant argued that without a stay, it would be forced to make additional payments to pension beneficiaries that might be difficult to recover if the Supreme Court later ruled in the administrator's favor.

Justice Ginsburg, acting as Circuit Justice, initially denied the stay application in October 2008. When the applicant sought reconsideration after the Supreme Court invited the Solicitor General to submit views on the certiorari petition, Justice Ginsburg again declined to grant relief. Although an invitation to the Solicitor General increases the likelihood that certiorari will be granted, the Justice found that this development alone did not satisfy all the requirements for a stay. Specifically, the applicant failed to demonstrate that recoupment of disbursed funds would be impossible or that the pension plan itself faced jeopardy from making the payments.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Standard for granting stays pending certiorari review
  • Meaning of 'irreparable harm' in the context of pension plan payments
  • Relevance of Solicitor General invitation to probability of certiorari grant
  • Balance of equities between applicant and beneficiaries

Procedural posture

The Circuit Justice denied an initial stay application on October 20, 2008, and subsequently considered a reapplication for stay based on changed circumstances following the Supreme Court's call for the Solicitor General's views in March 2009.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

Justice Ginsburg,

Circuit Justice.

Sally L. Conkright, Administrator of the Xerox Corporation Pension Plan, et al., have reapplied for a stay of the mandate of the United States Court of Appeals for the Second Circuit. In their initial application, filed October 16, 2008, the applicants sought a stay pending the filing and disposition of their petition for certiorari. The Second Circuit’s decision in their case, 535 F. 3d 111 (2008), they asserted, was erroneous, created a Circuit conflict, and would cause irreparable harm if given effect. Without a stay, the applicants explained, they would be required to make additional payments to dozens of pension plan beneficiaries — money that could prove difficult to recoup if this Court were to grant certiorari and rule in their favor.

Acting in my capacity as Circuit Justice, I denied the stay application on October 20, 2008. Denial of such in-chambers stay applications is the norm; relief is granted only in “extraordinary cases.” Rostker v. Goldberg, 448 U. S. 1306, 1308 (1980) (Brennan, J., in chambers). Specifically, the applicant must demonstrate (1) “a ‘reasonable probability’ that four Justices will consider the issue sufficiently meritorious to grant certiorari or to note probable jurisdiction”; (2) “a fair prospect that a majority of the Court will conclude that the decision below was erroneous”; and (3) a likelihood that “irreparable harm [will] result from the denial of a stay.” Ibid. In addition, “in a close case it may be appropriate to ‘balance the equities’ — to explore the relative harms to applicant and respondent, as well as the interests of the public at large.” Ibid. I earlier determined, taking account of the Second Circuit’s evaluation, that this case did not meet the above-stated criteria.

The applicants seek reconsideration based on a change in circumstances. Specifically, after I denied their initial application, the applicants filed their petition for certiorari, and, on March 2,2009, the Court called for the views of the Solicitor General (CVSG). The Solicitor General has yet to respond. According to the applicants, a stay is now in order because the Court’s invitation to the Solicitor General — a step taken in only a small fraction of cases — establishes a “reasonable probability” that certiorari will be granted.

Our request for the Solicitor General’s view, although relevant to the “reasonable probability” analysis, is hardly dis-positive of an application to block implementation of a Court of Appeals’ judgment. CVSG’d petitions, it is true, are granted at a far higher rate than other petitions. But it is also true that the Court denies certiorari in such cases more often than not. Consideration of the guiding criteria in the context of the particular case remains appropriate.

A “reasonable probability” of a grant is only one of the hurdles an applicant must clear. Relief is not warranted unless the other factors also counsel in favor of a stay. The Court’s invitation to the Solicitor General does not lead me to depart from my previous assessment of those factors. With respect to irreparable harm, the applicants urge that, should they prevail in this Court, they may have trouble recouping any funds they disburse to beneficiaries. But they do not establish that recoupment will be impossible; nor do they suggest that the outlays at issue will place the plan itself in jeopardy. Cf. Sampson v. Murray, 415 U. S. 61, 90 (1974) (“Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm” (internal quotation marks omitted)).

Accordingly, the request for a stay is denied.

It is so ordered.