Processing All Things Federal Circuit
September 17, 2020 - Federal Circuit Insights

The Hail Mary: Seeking an Injunction or Stay Pending Appeal

The Hail Mary: Seeking an Injunction or Stay Pending Appeal

At Federal Circuitry, sometimes we have simple ideas that prove not so simple. What we expect will be a few hours of data collection, number crunching, and analysis actually turns into far more work. This post is one of those instances. A few weeks ago, I had what others would now describe as the not-so-bright idea of seeing how movants fared in Federal Rule of Appellate Procedure 8 (or FRAP 8) motions in the Federal Circuit. I thought this might be “interesting” and “useful.” As readers know, FRAP 8 permits parties to seek an injunction or stay pending appeal. These motions are typically filed shortly after an appeal is docketed and are usually decided in short per curiam orders before briefs are filed. Oftentimes, the movant gets temporary relief while the motion is decided. To get relief pending the entire appeal, movants must show a likelihood of success on appeal, some immediate irreparable harm, that the balance of hardships favors the movant, and that the public interest would be served (or at least not harmed) by the interim relief. These motions are somewhat “exotic” in the sense that they don’t happen all that often. But they’re also important; sometimes interim relief is a critical part of making an appeal really “worth it”—such as to prevent the launch of a competing product or to prevent the disclosure of confidential information. In other words, sometimes there’s a bell that just can’t be unrung.

Since we track substantive orders and other court data, I thought that looking at this data wouldn’t be a big lift. And because I wanted a somewhat decent sample size, I figured we should go back at least five years. Many hours later of having to look through orders and the underlying motions (because many orders themselves are non-specific), MoFo’s appellate paralegal Chad Borgman and I parsed through the 60 or so FRAP 8 motions we found over the past five years. (Did we miss one or two? Possibly. We found that, other than brute force PACER searches, there’s no easy way to collect this data.)

What did we find? As expected, the odds are stacked against the movant. Movants get some relief only 16.7% of the time (10 out of 60 motions).


That was not surprising. After all, if the district court orders an injunction (such as to prevent ongoing infringement or to stop the launch of a competing drug product), the court of appeals isn’t likely to second guess the trial court’s determination before the appeal is even briefed, let alone argued.

The next question is whether movants fare better in some kinds of appeals as opposed to others. Because we’re dealing with smaller sample sizes once we parse the data, the answer was a little less clear. Looking at the cases, I created six buckets: (1) patent injunctions/stays; (2) government contract cases; (3) motions to stay proceedings; (4) motions to prevent the disclosure/use of sensitive information; (5) pro se motions—typically government employees—all of which were denied; and (6) “other”—five cases that didn’t really fit into any categories, such as the amount of a supersedeas bond or a case involving VA regulations. We’ll discuss the first four categories.

For the bread-and-butter patent docket, a movant’s overall success rate wasn’t all that different. Alleged infringers or patent owners sought injunctions or stays pending appeal 26 times. Their success rate: 15.4%. Nor did it seem to matter—from a pure numbers standpoint—whether the patent owner or alleged infringer was seeking relief under FRAP 8. Both alleged infringers and patent owners each obtained relief 15.4% of the time (13 motions, 2 granted). I also wondered if the success rate was higher for life sciences cases—not so much. It was 13.3%. But the sample size (15 motions) was so small that it’s hard to read too much into things. And—digging a little deeper—if anything, our small sample pointed in the opposite direction from what I would have expected. When a patent owner sought relief under FRAP 8 in a life sciences case, they obtained relief just 8.3% of the time.

Compared to patent cases, we found fewer government contracts cases where a party sought a stay or injunction pending appeal. In these cases, a government contractor generally asks the Federal Circuit to prevent a rival contractor from performing under the contract or to prohibit the government from making a new award. To state the obvious, the lesson in these cases is similar to that in patent cases: you really want to win below, and, if you need interim relief from the Federal Circuit, you’re generally going to be out of luck. We found seven instances where a government contractor sought interim relief from the Federal Circuit. The number of times they appeared to get interim relief pending appeal: maybe one. Five times the government contractor was denied relief outright. One time, the Court expedited the briefing and argument (under a schedule agreed to by all the parties), which appeared to make the interim relief less necessary. And another time, partial relief was granted after oral argument. If we round up, that means interim relief is granted 14.3% of the time. But, looking at the cases, it kind of felt less than that. None of this suggests that no case would warrant an injunction pending appeal; the Court just hasn’t seen one recently.

Equally grim is when parties seek to stay proceedings—such as to stay trial court proceedings pending a mandamus petition. When broadly looking at motions to stay trial court proceedings, we found 10 cases, and only one was granted. Now perhaps I’m being overly negative, because in several of these cases the need for relief pending appeal (or mandamus) effectively became moot—the Court denied the stay at the same time it denied the mandamus.

So does anyone consistently win? In fact, yes: parties trying to prevent the disclosure or use of highly confidential, trade secret, or privileged information. We found four cases where this issue arose. And, from a pure numbers perspective, the moving party obtained interim relief in three—a 75% success rate. But really, the movants got the interim relief they needed in all four cases. In the case where the Court denied the FRAP 8 motion as moot, the Court simultaneously (and quickly) granted the mandamus petition to prevent the use of the confidential information. That seems like a win. Of course, if one wanted to be nitpicky, it could be pointed out that in a different case, the movant really got little more than a temporary stay that was dissolved when mandamus was denied. Even so, that was still interim relief during the pendency of the entire—albeit short—appellate proceedings.

Just to recap, here’s a bar chart of the success rate for the various FRAP 8 motions:


Sometime in the future, Federal Circuitry will revisit this data, as we’ll continue to track FRAP 8 motions and keep looking for any new or interesting trends.