(1)Initial Motion Before the Agency. A petitioner must ordinarily move first before the agency for a stay pending review of its decision or order.
(2)Motion in the Court of Appeals. A motion for a stay may be made to the court of appeals or one of its judges.
(A)The motion must:
(i)show that moving first before the agency would be impracticable; or
(ii)state that, a motion having been made, the agency denied the motion or failed to afford the relief requested and state any reasons given by the agency for its action.
(B)The motion must also include:
(i)the reasons for granting the relief requested and the facts relied on;
(ii)originals or copies of affidavits or other sworn statements supporting facts subject to dispute; and
(iii)relevant parts of the record.
(C)The moving party must give reasonable notice of the motion to all parties.
(D)The motion must be filed with the circuit clerk and normally will be considered by a panel of the court. But in an exceptional case in which time requirements make that procedure impracticable, the motion may be made to and considered by a single judge.
(b)Bond. The court may condition relief on the filing of a bond or other appropriate security.
(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)
Notes of Advisory Committee on Rules—1967
While this rule has no counterpart in present rules regulating review of agency proceedings, it merely assimilates the procedure for obtaining stays in agency proceedings with that for obtaining stays in appeals from the district courts. The same considerations which justify the requirement of an initial application to the district court for a stay pending appeal support the requirement of an initial application to the agency pending review. See Note accompanying Rule
8. Title 5, U.S.C. § 705 (5 U.S.C.A. § 705 (1966 Pamphlet)) confers general authority on both agencies and reviewing courts to stay agency action pending review. Many of the statutes authorizing review of agency action by the courts of appeals deal with the question of stays, and at least one, the Act of June 15, 1936, 49 Stat. 1499 (7 U.S.C. § 10a), prohibits a stay pending review. The proposed rule in nowise affects such statutory provisions respecting stays. By its terms, it simply indicates the procedure to be followed when a stay is sought.
Committee Notes on Rules—1998 Amendment
The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only.
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