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Whitehead v. Frawner

United States District Court, D. New Mexico

August 26, 2019

MONTE WHITEHEAD, Plaintiff,
v.
JAMES FRAWNER et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO STAY OR FOR AN EXTENSION OF TIME

          KIRTAN KHALSA UNITED STATES MAGISTRATE JUDGE

         THIS MATTER comes before the Court on Plaintiff's Motion to Stay Most Recent Order (Doc[.] 112), or in the Alternative, Motion for Extension of Time to File Amended Complaint (Doc. 113) (“Motion”), filed August 5, 2019. Defendants Frawner, Martinez, Moreno, and Management & Training Corporation filed a response in opposition to the Motion on August 16, 2019, (Doc. 115), and Plaintiff filed a reply in support of the Motion on August 23, 2019. (Doc. 116.) The Court, having reviewed the pleadings, the record, and the relevant law, and being otherwise fully advised, FINDS that Plaintiff's Motion is well-taken in part and should be GRANTED IN PART and DENIED IN PART as set forth below.

         In his Motion, Plaintiff seeks a stay of the Court's June 21, 2019 Order (Doc. 112) executing the May 21, 2019 Mandate and April 2, 2019 Order and Judgment of the United States Court of Appeals for the Tenth Circuit (Doc. 110), until the United States Supreme Court decides Plaintiff's pending Petition for Writ of Certiorari. (Doc. 113 at 2; see Doc. 113 at 5-55.) However, as Defendants observe, this Court lacks authority to stay the execution of a Tenth Circuit ruling pending the Supreme Court's decision on a certiorari petition. (Doc. 115 at 2-3.) The pertinent statute, 28 U.S.C. § 2101, provides:

[i]n any case in which the final judgment or decree of any court is subject to review by the Supreme Court on writ of certiorari, the execution and enforcement of such judgment or decree may be stayed for a reasonable time to enable the party aggrieved 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 or by a justice of the Supreme Court[.]

28 U.S.C. § 2101(f).

         On its face, this statute authorizes the issuance of a stay only by a Supreme Court justice or by “a judge of the court rendering the judgment or decree” that is “subject to review by the Supreme Court on writ of certiorari.” Id. In this case, the court rendering the judgment or decree subject to the Supreme Court's review, the execution and enforcement of which Plaintiff seeks to stay, is the Tenth Circuit. (Doc. 113 at 5-55.) Thus, Section 2101(f) authorizes only a Supreme Court justice or a Tenth Circuit judge to issue the stay Plaintiff seeks. 28 U.S.C. § 2101(f).

         Virtually every court to have considered this question has reached the same conclusion. See, e.g., In re Stumes, 681 F.2d 524, 525 (8th Cir. 1982); Sprint Commc'ns Co., L.P. v. Time Warner Cable, Inc., No. 11-2686-JWL, 2019 WL 3532063, at *2 (D. Kan. Aug. 2, 2019); William A. Graham Co. v. Haughey, 794 F.Supp.2d 566, 568 (E.D. Pa. 2011); United States v. Lentz, 352 F.Supp.2d 718, 725-26 (E.D. Va. 2005); Brinkman v. Dep't of Corr. of State of Kan., 857 F.Supp. 775, 777 (D. Kan. 1994); Gander v. FMC Corp., 733 F.Supp. 1346, 1347 (E.D. Mo. 1990).[1] As the United States District Court for the District of Kansas explained,

[Federal Rule of Civil Procedure] 62 allows a district court to stay execution of its judgment during an appeal, but once the court of appeals has issued its mandate, that appeal of the district court judgment has concluded. Any subsequent appeal to the Supreme Court is of the judgment of the court of appeals, not the judgment of the district court, and Rule 62 does not authorize a district court to stay the appellate court's judgment. Rather, that power has been given to the appellate courts and the Supreme Court in 28 U.S.C. § 2101(f).

Sprint Commc'ns Co., L.P., 2019 WL 3532063 at *2 (emphasis in original).

         “Nor as a prudential matter would it be appropriate for a district court to exercise jurisdiction to issue such a stay.” Lentz, 352 F.Supp.2d at 726.

It is simply not the proper role of a district court to decide whether a judgment of a higher court should be stayed pending possible review by the Supreme Court, and [Federal Rule of Civil Procedure] 62(d) and § 2101(f) do not provide the district court with such authority. Section 2101(f) and the relevant precedents make it clear that a judge of the Court of Appeals or a justice of [the] Supreme Court must make any stay determination based on all the appropriate factors, including the likelihood that certiorari will be granted and a reversal will occur.

William A. Graham Co., 794 F.Supp.2d at 569 (citations omitted); see also, e.g., Lentz, 352 F.Supp.2d at 726 (“[I]t is simply not an appropriate function for this court to pass on the likelihood that the ruling of a higher court will be accepted for review by the Supreme Court; rather, that function is properly performed by the court of appeals or the Supreme Court.”) (quotation marks omitted).

         Plaintiff argues that Section 2101(f) does not apply to his request for a stay because he seeks to stay an order of this Court rather than of the Tenth Circuit, specifically, this Court's June 21, 2019 Order allowing him to file an amended complaint within forty-five (45) days. (Doc. 116 at 1-2; see Doc. 112 at 6.) However, this Court's June 21, 2019 Order simply executes the Tenth Circuit's May 21, 2019 Mandate and April 2, 2019 Order and Judgment.[2] (Doc. 112 at 1-5.) Thus, it is the “execution and enforcement” of the Tenth Circuit's “judgment or decree” Plaintiff seeks to stay. It is likewise the Tenth Circuit's ruling, and not this Court's Order, that Plaintiff has asked the Supreme Court to review. In these circumstances, the Court finds that Section 2101(f) is the authority it should apply to Plaintiff's request for a stay.

         Plaintiff also argues that Supreme Court Rule 23 requires him to seek a stay “in the appropriate court or courts below” before seeking a stay in the Supreme Court. (Doc. 116 at 2.) “Except in the most extraordinary circumstances, ” this is true. U.S. Sup. Ct. R. 23(3). However, for the reasons just discussed, the only “appropriate court . . . below, ” i ...


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