McBride v. CSX Transp., Inc. , 598 F.3d 388 ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3557
R OBERT M C B RIDE,
Plaintiff-Appellee,
v.
CSX T RANSPORTATION, INC.,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:06-cv-01017-JPG-CJP—J. Phil Gilbert, Judge.
O N M OTION T O S TAY T HE M ANDATE
JUNE 24, 2010 Œ
R IPPLE, Circuit Judge (in chambers). CSX Transportation
has filed a motion to stay the mandate pending the
filing and disposition of a petition for writ of certiorari.
For the reasons set forth in this opinion, the motion
must be denied.
Œ
This opinion was released initially in typescript form.
2 No. 08-3557
On March 16, 2010, this court affirmed the judgment of
the district court. See McBride v. CSX Transp., Inc., 598 F.3d
388 (7th Cir. 2010). On June 3, we denied CSX’s petition
for rehearing en banc. On June 8, CSX filed this motion
for a stay of this court’s mandate. Therefore, the issuance
of the mandate, originally scheduled to issue on June 10,
has been postponed temporarily while we considered
the motion and the response of Mr. McBride.
The standard governing the issuance of such a stay
is well-established. We may stay our mandate pending
the filing of a petition for a writ of certiorari if the ap-
plicant demonstrates “that the certiorari petition would
present a substantial question and that there is good
cause for a stay.” Fed. R. App. P. 41(d)(2)(A). The inquiry
contemplated by this rule focuses on “whether the ap-
plicant has a reasonable probability of succeeding on the
merits and whether the applicant will suffer irreparable
injury.” United States ex rel. Chandler v. Cook County, 282
F.3d 448, 450 (7th Cir. 2002) (Ripple, J., in chambers). To
demonstrate a reasonable probability of success on
the merits, the applicant must show a reasonable prob-
ability that four Justices will vote to grant certiorari and
a reasonable possibility that five Justices will vote to
reverse the judgment of this court. Id. See also Indiana
Prot. & Advocacy Servs. v. Indiana Family & Soc. Servs.
Admin., 2010 WL 2115386, *1 (7th Cir. May 26, 2010)
(Hamilton, J., in chambers) (quoting California v. Am.
Stores Co., 492 U.S. 1301, 1306-07 (1989) (O’Connor, J., in
chambers)).
CSX argues that it meets each of the factors necessary
for this court to stay its mandate. It first argues that
No. 08-3557 3
there is a reasonable probability that four Justices will
vote to grant certiorari in this case. CSX points to
Supreme Court Rule 10(a), which says that the Court
will consider granting certiorari when “a United States
court of appeals . . . has decided an important federal
question in a way that conflicts with a decision by a
state court of last resort.”
CSX has not carried its burden of establishing the
requisite probability of success on the merits. Because
several state courts have taken a different view, it
has established that its case falls within the general cate-
gory of cases identified by the Supreme Court’s rule as
deserving consideration for a grant of a writ of certiorari.
It has not demonstrated, however, the requisite prob-
ability that certiorari will be granted or the requisite
possibility that the judgment of this court will be
reversed if certiorari should be granted. As the opinion
of this court notes, our decision is in conformity with the
law of this and every other federal circuit that has ad-
dressed the issue. Only a few state courts have adopted
a contrary position. Under these circumstances, absent a
clear indication from the Supreme Court that it desires
to re-debate an issue it so recently has confronted, our
proper course is to take the law as settled and require
a party maintaining that the Supreme Court wishes to
reconsider the matter to seek redress from the Supreme
Court both on the merits of its contention and with
respect to a stay of our mandate.
CSX also submits that it will suffer irreparable harm if
it is required to pay the judgment pending Supreme
4 No. 08-3557
Court review because, if the Supreme Court reverses, it
is unlikely to be able to recover the money from
Mr. McBride. It relies on two Supreme Court chambers
opinions: Ledbetter v. Baldwin, 479 U.S. 1309, 1310 (1986)
(Powell, J., in chambers) and Heckler v. Turner, 468 U.S.
1305, 1308 (1984) (Rehnquist, J., in chambers). In these
cases, the authoring Justices found irreparable injury
because it was unlikely that the applicant for the stay
would be able to recover funds if the judgment were
reversed. Notably, both cases involved the distribution
of AFDC payments by the government to a large
number of individuals who were unlikely to be able to
repay any erroneous payments if the judgment were
reversed. By contrast, here CSX does not explain, with
any specificity, why it is unlikely that Mr. McBride
will be able to repay the judgment if it is reversed.
In sum, it cannot be said, on the basis of the informa-
tion presented in this motion, that CSX has met the sig-
nificant burden placed on a litigant seeking a stay
pending the filing of a petition for a writ of certiorari.
Accordingly, the motion is denied.
M OTION D ENIED
7-1-10