Conkright v. Frommert

Cite as: 556 U. S. ____ (2009) 1
Opinion in Chambers
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SUPREME COURT OF THE UNITED STATES
_________________
No. 08–810 (08A884)
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SALLY L. CONKRIGHT ET AL. v. PAUL J. FROMMERT
ET AL.
ON APPLICATION FOR STAY
[April 30, 2009]
JUSTICE GINSBURG, Circuit Justice.
Sally L. Conkright, Administrator of the Xerox Corpora
tion Pension Plan, et al., have reapplied for a stay of the
mandate of the United States Court of Appeals for the
Second Circuit. In their initial application, filed October
16, 2008, the applicants sought a stay pending the filing
and disposition of their petition for certiorari. The Second
Circuit’s decision in their case, 535 F. 3d 111 (2008), they
asserted, was erroneous, created a Circuit conflict, and
would cause irreparable harm if given effect. Without a
stay, the applicants explained, they would be required to
make additional payments to dozens of pension plan bene
ficiaries—money that could prove difficult to recoup if this
Court were to grant certiorari and rule in their favor.
Acting in my capacity as Circuit Justice, I denied the
stay application on October 20, 2008. Denial of such in
chambers stay applications is the norm; relief is granted
only in “extraordinary cases.” Rostker v. Goldberg, 448
U. S. 1306, 1308 (1980) (Brennan, J., in chambers). Spe
cifically, the applicant must demonstrate (1) “a ‘reasonable
probability’ that four Justices will consider the issue suffi
ciently meritorious to grant certiorari or to note probable
2 CONKRIGHT v. FROMMERT
Opinion in Chambers
jurisdiction”; (2) “a fair prospect that a majority of the
Court will conclude that the decision below was errone
ous”; and (3) a likelihood that “irreparable harm [will]
result from the denial of a stay.” Ibid. In addition, “in a
close case it may be appropriate to ‘balance the equities’—
to explore the relative harms to applicant and respondent,
as well as the interests of the public at large.” Ibid. I
earlier determined, taking account of the Second Circuit’s
evaluation, that this case did not meet the above-stated
criteria.
The applicants seek reconsideration based on a change
in circumstances. Specifically, after I denied their initial
application, the applicants filed their petition for certio
rari, and, on March 2, 2009, the Court called for the views
of the Solicitor General (CVSG). The Solicitor General has
yet to respond. According to the applicants, a stay is now
in order because the Court’s invitation to the Solicitor
General—a step taken in only a small fraction of cases—
establishes a “reasonable probability” that certiorari will
be granted.
Our request for the Solicitor General’s view, although
relevant to the “reasonable probability” analysis, is hardly
dispositive of an application to block implementation of a
Court of Appeals’ judgment. CVSG’d petitions, it is true,
are granted at a far higher rate than other petitions. But
it is also true that the Court denies certiorari in such cases
more often than not. Consideration of the guiding criteria
in the context of the particular case remains appropriate.
A “reasonable probability” of a grant is only one of the
hurdles an applicant must clear. Relief is not warranted
unless the other factors also counsel in favor of a stay.
The Court’s invitation to the Solicitor General does not
lead me to depart from my previous assessment of those
factors. With respect to irreparable harm, the applicants
urge that, should they prevail in this Court, they may
have trouble recouping any funds they disburse to benefi
Cite as: 556 U. S. ____ (2009) 3
Opinion in Chambers
ciaries. But they do not establish that recoupment will be
impossible; nor do they suggest that the outlays at issue
will place the plan itself in jeopardy. Cf. Sampson v.
Murray, 415 U. S. 61, 90 (1974) (“Mere injuries, however
substantial, in terms of money, time and energy necessar
ily expended in the absence of a stay, are not enough. The
possibility that adequate compensatory or other corrective
relief will be available at a later date, in the ordinary
course of litigation, weighs heavily against a claim of
irreparable harm” (internal quotation marks omitted)).
Accordingly, the request for a stay is denied.
It is so ordered.