Application by the Secretary of Transportation to vacate the
Court of Appeals' order staying the operation of a certain motor
vehicle safety standard, which was before the court upon
respondents' petition for review, is granted, where it appears that
the Court of Appeals, in ordering the stay, failed to consider the
likelihood of respondents' success on the merits, and the Secretary
has demonstrated that irreparable harm might result from the
stay.
MR. JUSTICE REHNQUIST, Circuit Justice.
Applicant Secretary of Transportation has moved to vacate a stay
order entered by the United States Court of Appeals for the Ninth
Circuit in a case presently pending before that court. The case
arose in that court by reason of a petition for review of
amendments to a motor vehicle safety standard promulgated by the
Secretary's delegate on November 12, 1974, and scheduled to take
effect on March 1, 1975. (MVSS-121;
see 49 CFR § 571.121).
The original petition for review in the Court of Appeals was filed
by respondent PACCAR on January 3, 1975, and, meanwhile, two other
challenges to the same standard filed in two other Courts of
Appeals were transferred to the Court of Appeals for the Ninth
Circuit and consolidated with PACCAR's challenge. PACCAR moved to
stay the effective date of the regulation in the Court of Appeals
for the Ninth Circuit, but its motion was denied on February 10,
1975. Oral argument on the
Page 424 U. S. 1302
merits of the petition for review was set by the Court of
Appeals for January 16, 1976. In December, 1975, the Secretary's
delegate gave notice that he proposed to modify the standard in
question, and the Secretary moved in the Ninth Circuit to postpone
oral argument until after the modification. The Court of Appeals
advised counsel for the Secretary to appear at oral argument on
January 16, 1976, as scheduled.
Following oral argument, the Court of Appeals entered the
following order:
"IT IS HEREBY ORDERED that [the motor vehicle safety standard]
is stayed for a period of sixty days, this stay to remain in effect
thereafter pending further order of this court upon the application
of any party."
It is incumbent upon me first to determine whether I have
jurisdiction to grant the relief requested by the Secretary. This
case does not come before me in the usual posture of a stay
application, where a court of appeals has rendered a judgment
disposing of a case before it and the losing litigant seeks a stay
of the judgment of the court of appeals pending the filing of a
petition for certiorari to review that judgment in this Court.
There, the question is whether four Justices are likely to vote to
grant certiorari, and what assessment is to be made of the equities
pertinent to the grant of such interim relief.
Edelman v.
Jordan, 414 U. S. 1301
(1973) (REHNQUIST, J., in chambers). Here, the Court of Appeals has
not finally disposed of the case; indeed, it has not ruled on the
merits, nor apparently rescheduled oral argument on the question
presented by the petition for review of the safety standard.
Pursuant to Rules 50 and 51 of this Court, I have authority as
Circuit Justice to take any action which the full Court might take
under 28 U.S.C. § 1651. But
Page 424 U. S. 1303
even the full Court, under § 1651, may issue writs only in aid
of its jurisdiction. The Secretary contends that the Court of
Appeals' stay order is the equivalent of a preliminary injunction
which, if issued by a three-judge district court, would be
reviewable here. Certainly the full Court, in the exercise of its
normal appellate jurisdiction, has noted probable jurisdiction,
heard argument, and written opinions in cases where the district
court has issued only a preliminary injunction.
See Brown v.
Chote, 411 U. S. 452
(1973);
Withrow v. Larkin, 421 U. S.
35 (1975). But in each of those cases, the action of the
District Court was made appealable to this Court by statute. 28
U.S.C. § 1253. There is no similar provision for appeal
eo
nomine from an interlocutory order of a court of appeals.
This Court has jurisdiction to review by certiorari any case in
a court of appeals, 28 U.S.C. § 1254. Although the Secretary is not
presently seeking certiorari from this Court in order to review the
stay order of the Court of Appeals, if I have authority as Circuit
Justice to vacate the stay, it must be on the ground that the
vacation of the stay is "in aid of this Court's jurisdiction" to
review by certiorari a final disposition on the merits of
respondents' petition to review and set aside the safety standard
in question.
See McClellan v. Carland, 217 U.
S. 268,
217 U. S.
279-280 (1910).
The closest opinions in point seem to be the in-chambers
opinions of my Brother MARSHALL in
Holtzman v.
Schlesinger, 414 U. S. 1304
(1973), and of Mr. Justice Black in
Meredith v. Fair, 83
S. Ct. 10, 9 L. Ed. 2d 43 (1962). Both opinions considered on their
merits motions to vacate interlocutory stays issued by a judge or
panel of judges of a Court of Appeals; in
Holtzman, the
motion was denied, and in
Meredith, it was granted. I
think the sense of the two opinions, and likewise that of
Page 424 U. S. 1304
Mr. Justice Douglas' dissent in
Schlesinger v.
Holtzman, 414 U. S. 1321,
414 U. S.
1322 (1973), is that a Circuit Justice has jurisdiction
to vacate a stay where it appears that the rights of the parties to
a case pending in the court of appeals, which case could and very
likely would be reviewed here upon final disposition in the court
of appeals, may be seriously and irreparably injured by the stay,
and the Circuit Justice is of the opinion that the court of appeals
is demonstrably wrong in its application of accepted standards in
deciding to issue the stay. A narrower rule would leave the party
without any practicable remedy for an interlocutory order of a
court of appeals which was
ex hypothesi both wrong and
irreparably damaging;
* a broader rule
would permit a single Justice of this Court to simply second-guess
a three-judge panel of the court of appeals in the application of
principles with respect to which there was no dispute.
The Secretary contends that, since the action of the Court of
Appeals is equivalent to a preliminary injunction issued by a
district court, the Court of Appeals should be required to make the
same sort of findings
Page 424 U. S. 1305
before granting such a stay as are required of a district court
by Fed.Rule Civ.Proc. 65. Perhaps the full Court, in the exercise
of its supervisory authority, could impose such a requirement, even
though no rule or statute does, but certainly a Circuit Justice in
chambers may not do so. A court, in staying the action of a lower
court,
see O'Brien v. Brown, 409 U. S.
1,
409 U. S. 3
(1972), or of an administrative agency,
Sampson v. Murray,
415 U. S. 61
(1974), must take into account factors such as irreparable harm and
probability of success on the merits. But, in the absence of a
statute, rule, or controlling precedent, there is no fixed
requirement that a court recite the fact that it has taken these
into consideration, or explain its reason for taking the action
which it did.
It is thus not dispositive that the Court of Appeals failed to
specifically address in terms the factors of irreparable harm and
probable success on the merits. But this does not mean that the
Court of Appeals' action in entering the stay is entirely beyond
review. For if the record convincingly demonstrates that the Court
of Appeals could not have considered each of these factors at all,
and the effect of its decision is shown to pose a danger of
irreparable harm impairing this Court's ability to provide full
relief in the event it ultimately reviews the action of the Court
of Appeals on the merits, I believe that I should afford the
interim relief sought.
The following description of the order of the court, and its
instructions to counsel, is taken from the Secretary's application,
but is not disputed in material portion by respondents:
"When the case was called for oral argument, the court announced
to the parties that it was uncertain about the status of MVSS-121
due to the modification proposed by NHTSA [National Highway Traffic
Safety Administration], that it did not understand
Page 424 U. S. 1306
the contentions of the parties on the merits, and that it was
suspending the operation of MVSS-121 forthwith for a minimum period
of 60 days, after which it would continue the suspension while
entertaining appropriate motions from the parties. The court
instructed the parties to submit an order whose terms would require
the parties to agree upon another order setting forth the issues in
controversy, the parties' position on each issue, the documents in
the record relevant to the issues, and the uncontroverted facts,
or, failing such agreement, to pay for the services of a 'master,'
to be appointed by the court, who would examine the pleadings, the
record, and the briefs and submit to the court for approval a
proposed order fixing the issues and record for review."
I can readily understand the uncertainty of the Court of Appeals
with respect to the issues in controversy, the parties' position on
them, and the like. I have resolutely resisted the efforts of both
parties to dispel my own uncertainty on these issues, which remains
pristine. Congress, in a complex statute, has imposed an arduous
burden on the Secretary's delegate, and then provided for judicial
review under the Administrative Procedure Act, 5 U.S.C. § 701
et seq., which places enormously difficult burdens on the
Court of Appeals. But the complexity of the issue does not change
the time-honored presumption in favor of the validity of the
Administrator's determination, nor shift the burden of showing
probable success from the shoulders of the parties who seek to
upset that determination.
See FPC v. Hope Natural Gas Co.,
320 U. S. 591,
320 U. S. 602
(1944);
Permian Basin Area Rate Cases, 390 U.
S. 747,
390 U. S. 767
(1968).
I do not find the Court of Appeals' direction to the parties
with respect to the formulation of issues and
Page 424 U. S. 1307
stipulation as to the record to be consistent with a finding,
which must be implied, since it is not expressed, that respondents
would probably succeed on the merits of their petition to set aside
the standard promulgated by the Secretary's delegate. Moreover,
applicant has persuasively urged that the Government will suffer
irreparable harm if MVSS-121 is not permitted to remain in effect
during the pendency of the litigation on the merits. Congress'
desire "to reduce traffic accidents and deaths and injuries to
persons resulting from traffic accidents," § 1, 80 Stat. 718, 15
U.S.C. § 1381, is currently being pursued under the statutory
scheme by requiring compliance with prescribed motor vehicle safety
standards at the time of vehicle manufacture. 15 U.S.C. §
1397(a)(1). Presently, vehicles manufactured while a standard is
not in effect may be later sold or transferred without restriction,
and may thereby find their way to the highways although not in
compliance with safety requirements properly deemed necessary by
the Secretary.
As long as the stay entered by the Court of Appeals remains in
effect, manufacturers are free to produce as many vehicles as they
can, and so may obtain substantial stockpiles of noncomplying
vehicles for later sale. The Secretary has represented to me that
vehicle manufacturers such as respondents may, during the initial
60-day period of the Ninth Circuit's stay, be able to produce
enough vehicles to satisfy anticipated demand for as much as a full
year thereafter. I do not understand this suggestion to be
seriously disputed by respondents.
Thus, even if the stay ordered by the Court of Appeals is
ultimately dissolved and the Secretary's decision upheld on the
merits, the goals of the federal motor vehicle safety program will
have been dealt a serious setback.
Page 424 U. S. 1308
Effective implementation at the manufacturing stage of the
congressionally mandated safety program will have been delayed for
a year or more. And the natural desire on the part of operators to
obtain a fleet of the cheaper noncomplying vehicles while they are
still available may cause increased purchases of such vehicles now,
resulting in a subsequent prolonged depression in the market for
complying vehicles if and when the safety standard is again
effective. This predictable eventuality will further impede
Congress' intention to promote improved highway safety as
expeditiously as is practicable.
The Secretary has, in my opinion, therefore not only shown that
the Court of Appeals did not evaluate the likelihood of
respondents' success on the merits, but has in addition shown that
the harm flowing from the stay issued by the Court of Appeals could
not be redressed by an ultimate decision, either in that court or
this, in his favor on the merits.
The Secretary's motion to vacate the stay order entered by the
Court of Appeals on January 16, 1976, is therefore granted, without
prejudice to the right of respondents or any of them to renew their
application for a stay of the standard in the Court of Appeals
agreeably to the rules and practices of that court.
* The losing litigant could, of course, petition this Court for
a writ of certiorari to review the stay order of the court of
appeals. Since the case is "in" the court of appeals within the
meaning of 28 U.S.C. § 1254, the Court would presumably have
jurisdiction to grant the writ if it chose to do so in the exercise
of its discretion.
New York Times Co. v. United States,
403 U.S. 942 (1971).
See also Far East Conference v. United
States, 342 U. S. 570
(1952). But the exercise of such power by the Court is an extremely
rare occurrence. Supreme Court Rule 20.
The losing litigant might likewise proceed by a motion to vacate
the stay presented to the full Court. But since my authority under
Rules 50 and 51 of the Court is coextensive with that of the Court,
if I am right in the standards which govern me in exercising
jurisdiction under 28 U.S.C. § 1651, the full Court would have no
broader authority in such an instance than that which I exercise
today.
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