Halting Administrative Action in the Supreme Court

Abstract

“It takes time to decide a case on appeal.” Time can be the helpful friend or the potent foe of a litigant. It depends. Will the litigant’s favored legal position, or his opponent’s, govern his legal rights and obligations as his case plods through the appellate process? When federal agencies are on one side of the “v,” this question becomes important not only for individual litigants, but also for the content of federal law: Will an agency regulation stay in effect as the plaintiff’s challenge to it slowly works its way through the federal courts?

The Supreme Court has not articulated a clear standard for deciding whether to allow agency regulations to stay intact over the course of litigation. When a litigant asks the Court to temporarily halt agency action while he mounts his merits challenge to that action, the litigant is requesting a form of preliminary relief. The Supreme Court issues two primary forms of preliminary relief: stays and injunctions. The Court has not answered the question whether its test for a stay or its test for an injunction should govern its analysis of preliminary requests to halt administrative action. This Note offers an answer.

Part I introduces the central relevant statute, 5 U.S.C. § 705. The Administrative Procedure Act (APA) structures the exercise of executive power by administrative agencies. The APA contains provisions regarding judicial review of administrative action. Section 705 is one such provision. It governs the issuance of preliminary relief pending full review of agency action. After defining stays and injunctions and noting the differences between the two, Part I argues that § 705 offers reviewing federal courts a choice between issuing stays and injunctions when temporarily halting administrative action.

Part II lays out the existing standards for the Court’s granting of stays and injunctions in order to determine which standard should govern the Supreme Court’s issuance of § 705 relief. The Court has not been consistent about how clear the applicant’s legal rights must be to warrant a preliminary injunction. Part II defends the traditional position that applicants must clear an especially high bar to obtain injunctive relief from the Supreme Court.

Part III argues that the traditional heightened standard for injunctive relief, as defended in Part II, should govern § 705 relief regardless of whether the Court issues that relief in the form of a stay or an injunction. The considerations counseling in favor of adhering to such a heightened standard apply with full force to § 705 stays and § 705 injunctions alike. The Court’s precedents do not counsel otherwise. In fact, there is longstanding precedent in support of Supreme Court deference to lower courts when those courts decline to stay agency action or enjoin an agency.

Part IV concludes the Note.