United States District Court, D. New Mexico
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO STAY OR FOR AN EXTENSION OF
KHALSA UNITED STATES MAGISTRATE JUDGE
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.
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
28 U.S.C. § 2101(f).
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).
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). 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).
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
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. (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.
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 ...