United States v. BDO Seidman , 345 F.3d 465 ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 02-3914, 02-3915
UNITED STATES OF AMERICA,
Petitioner-Appellee,
v.
BDO SEIDMAN, regarding promoter
examination of BDO Seidman,
Respondent-Appellee.
APPEALS OF: JOHN DOE and
JANE DOE and RICHARD ROE and
MARY ROE,
Proposed Intervenors.
__________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 4822 – Milton I. Shadur, Judge.
__________
ON MOTION TO STAY THE MANDATE
SEPTEMBER 25, 2003*
__________
*
This opinion is being released initially in typescript form.
Nos. 02-3914, 02-3915 Page 2
RIPPLE, Circuit Judge (in chambers). John and Jane Doe
and Richard and Mary Roe, appellants in this matter, have filed a
motion to stay issuance of the mandate of this court pending the
filing of a petition for a writ of certiorari.
A movant seeking a stay of this court’s mandate pending the
filing of a petition for a writ of certiorari must demonstrate a
reasonable probability of succeeding on the merits and that the
movant will suffer irreparable injury absent a stay. Nanda v. Board
of Trs. of the Univ. of Ill., 312 F.3d 852, 853 (7th Cir. 2002) (Ripple,
J., in chambers). To demonstrate a reasonable probability of
success on the merits, the movant must demonstrate a reasonable
probability that four Justices will vote to grant certiorari and a
reasonable possibility that five Justices will vote to reverse this
court’s judgment. Id. at 853-54.
The appellants have not met their burden. First, from a
procedural perspective, the motion fails to certify that the
appellants in fact are filing a certiorari petition and fails to identify
any issues they will raise in the petition. See Practitioner’s
Handbook for Appeals, p.89 (2003) (requiring counsel to make such
a certification and identify the issues to be raised). More
significantly, the appellants’ 3-page motion states only that the
panel’s opinion “arguably is in conflict with prior opinions of this
circuit.” Motion at 3. Beyond this bare assertion, the motion
contains no argument about whether the Supreme Court is likely to
grant certiorari and to reverse the judgment of this court. As
demonstrated by the panel’s opinion, its holding does not conflict
with any Supreme Court authority or with any authority from other
circuits.
In short, the motion seems inadequate on its face. Because
the appellants have failed to demonstrate a reasonable probability
of success on the merits, the motion must be denied.
MOTION TO STAY MANDATE DENIED