Skip to content

Same judges who are handling stay request will handle appeal

MootFestival-01

Far more significant than the news, courtesy of Albert Breer of NFL Network, that the U.S. Court of Appeals for the Eighth Circuit will hear on June 3 oral arguments regarding the appeal of Judge Susan Nelson’s order lifting the lockout is the news that the same three judges who handled the league’s motion for a temporary stay and who are handling the motion for a stay pending resolution of the appeal will handle the review of Judge Nelson’s ruling.

On Monday, court clerk Michael Gans told PFT that “a motions panel may keep a case for the final decision if it has done a substantial amount of work on the case and determines reassignment would not be an efficient use of judicial resources.”  That’s apparently what the Eighth Circuit decided to do in this case.

Judge Duane Benton and Judge Steven M. Colloton, both of whom voted to grant the temporary stay, were nominated by President George W. Bush.  Judge Kermit Bye, who vehemently opposed the temporary stay, was nominated by President Clinton.  Judge Bye’s comments in the wake of the issuance of the temporary stay indicated that he is leaning heavily against granting a full stay.

Applying very superficial and cursory ideological considerations, Judge Benton and Judge Colloton will be inclined to rule in favor of business interests, and Judge Bye will be inclined to favor labor interests.  That said, plenty of judges depart from the partisan mindsets that positioned them for federal judicial appointments once a job for life has been secured.

As we explained last week, the eventual ruling could turn on the standard of review that applies to the various aspect of Judge Nelson’s decision.  Generally speaking, decision to grant motions for so-called “preliminary injunctions” are overturned only if the judge abused his or her discretion.  Lawyer David Boies told PFT Live last week that, in his view, certain aspects of Judge Nelson’s ruling should be reviewed from scratch, with no deference being extended to her reasoning or result.

We’ll know more about the specifics of the parties’ arguments soon.  The league’s brief is due May 9, and the players’ response will be filed on or before May 20.  The NFL gets the last word, on May 26.

Still unknown is whether Judge Benton and Judge Colloton will decide to grant the full stay.  If only one of them agrees with Judge Bye, the lockout will be lifted pending resolution of the appeal.  If both judges find that the stay should be granted, there will be a whole lot of nothing going on in the NFL between now and the resolution of the appeal.

Permalink 40 Comments Feed for comments Latest Stories in: Rumor Mill, Top Stories, Union
40 Responses to “Same judges who are handling stay request will handle appeal”
  1. jeff061 says: May 3, 2011 5:18 PM

    The Eighth Circuit is sending a not so veiled message to the NFLPA* – get back to the bargaining table…or you will lose!

  2. skoobyfl says: May 3, 2011 5:18 PM

    The Utopian idea is starting to make more & more sense everyday.

  3. pixelito says: May 3, 2011 5:24 PM

    So essentially… Republicans will ruin everything.

  4. endzonezombie says: May 3, 2011 5:25 PM

    How can the players feel they are getting fair consideration on a decision based upon idealology: a pro-business court vs. a labor issue. Republicans vs. Democrats. Conservatives vs. Liberals. How is the judicial system helping this matter when idealology is on the front burner. Would this impasse even exist without the involvement of high priced lawyers drivng the discussions away from the negotiating table and into the courtroom.

  5. ntr0py says: May 3, 2011 5:25 PM

    As previously explained:

    Federal law prohibits federal judges from issuing injunctions in labor disputes.

    Judge Nelson decided that this is not a labor dispute, and that the federal law does not apply.

    Her decision in at least this regard will be reviewed de novo.

  6. airraid77 says: May 3, 2011 5:26 PM

    aw the liberals are crying yet again…….and to think you have 3 liberal judges to 2………wait til the supreme court goes 5-4 conservative….the activism charges from the liberals will be all over the place.

  7. airraid77 says: May 3, 2011 5:30 PM

    skoobyfl, Did I call the likes of you communist? If not, here it is for good measure, HERE COME THE COMMUNIST.

  8. bfridley says: May 3, 2011 5:34 PM

    Man… you guys are REALLY rooting against the league.

    First you parade around how opposed to the stay Judge Bye is… then, since you’re obligated, you mention how in favor the other two judges are of the stay, yet that doesn’t last long before you point out how easily a judge can go against the grain of their party’s ideals…

    We get it… Judge Bye is hard-nosed against the league, and the other wishy-washy judges MIGHT support the league if it tickles their fancy

  9. bfridley says: May 3, 2011 5:37 PM

    I don’t think Judge Bye watches football… or pays attention to the off-season…

    Does he realize that a month is a VERY long time in the NFL? If the offseason opens before an agreement is met, then all contracts are going to be written in uncertainty of what the new labor deal will look like and the ramifications of said contract… some players won’t even be free agents if certain rules in the CBA are altered… it REALLY changes EVERYTHING, and it would be stupid to open business for a month, and then change everything.

  10. kom2k10 says: May 3, 2011 5:41 PM

    Thankfully, it looks like the tide is turning in the owners favor. Anyone who is shortsighted enough to root for the players to win this dispute is only thinking that ending the lockout would “guarantee” football this season, but it will do so at the expense of ruining the sport as a whole for years to come…

    If you’re a true fan of football, you need to be rooting for the owners here, even if it means we miss a game or two… the long term implications of the players wininng are way worse (no more draft, every player is a free agent, top markets will buy all the best players and no more parody etc…)

  11. smacklayer says: May 3, 2011 5:43 PM

    What a relief. Now I have more hep that the owner will win. This is a good thing.

  12. tinopuno says: May 3, 2011 5:44 PM

    airraid77 says:
    May 3, 2011 5:26 PM
    aw the liberals are crying yet again…….and to think you have 3 liberal judges to 2………wait til the supreme court goes 5-4 conservative….the activism charges from the liberals will be all over the place.

    —————————————————–

    Thank you AIRRAID77 for once again demonstrating that muddled thinking and poverty of expression knows no party lines.

  13. bronco1st says: May 3, 2011 5:48 PM

    Of course there won’t be new judges, these three have already been bought and paid for.

  14. nineroutsider says: May 3, 2011 5:54 PM

    If it is the same 3 judges, then the NFL will win on all of their positions and our next greatest hope at having some kind of normal off season and season is that the players come back to the table broken and disheartened.

    Sounds harsh, but I just want a normal off season and regular season and I don’t care how we get there.

    If the lockout goes past July, the Niners won’t get any season ticket $ from me this year. I hope all of you do the same…don’t pay to watch something less than what we have come to expect from the NFL.

  15. nineroutsider says: May 3, 2011 5:56 PM

    airraid77 says: May 3, 2011 5:30 PM

    skoobyfl, Did I call the likes of you communist? If not, here it is for good measure, HERE COME THE COMMUNIST.
    ——————————————————
    Can anyone understand what this AnalRoid77 moron is writing?

  16. thefiesty1 says: May 3, 2011 5:59 PM

    Benton and Colloton have their heads on straight. Not to worry. Bye will continue to decent. That’s what liberals do. They never change their opinions, that’s the problem we now have in this country.

  17. airraid77 says: May 3, 2011 6:08 PM

    nineroutsider,
    does any liberal actually understand economics?
    Here is a riddle for the commu- I mean liberals in this country: The rich would actually pay MORE IN TAXES with a smaller tax rate.

  18. nineroutsider says: May 3, 2011 6:11 PM

    airraid77 says: May 3, 2011 5:26 PM

    aw the liberals are crying yet again…….and to think you have 3 liberal judges to 2………wait til the supreme court goes 5-4 conservative….the activism charges from the liberals will be all over the place.
    ——————————————————
    Fresh from catching the musings of Rush comes AnalRoid77 to enlighten us all, but he can’t write to save his life….

    The Supreme Court has been 5-4 conservative for years. Remember Bush v. Gore (5-4)? That wasn’t activism in the least. The Court’s makeup hasn’t changed in years.

    You can’t read, so I will help you again, in this case, Brady, et al. v. NFL, there are 3 judges deciding it: 1 (presumably liberal judge) appointed by Clinton and 2 (presumably conservative judges) appointed by your boy ‘W’.

    “and to think you have 3 liberal judges to 2″…Not sure where this came from.

    My public service for the day…

  19. nineroutsider says: May 3, 2011 6:14 PM

    thefiesty1 says: May 3, 2011 5:59 PM

    Benton and Colloton have their heads on straight. Not to worry. Bye will continue to decent. That’s what liberals do. They never change their opinions, that’s the problem we now have in this country.
    —————————————————–
    “Bye will continue to decent.” – Do you mean he will wear clothes under his robe? Does he have a history of streaking or something? When has he not been ‘decent’.? Thx

  20. nflfan101 says: May 3, 2011 6:28 PM

    It is interesting that you appear to acknowledge that the two judges appointed by Bush may have open minds while the judge appointed by Clinton has already made up his mind.

  21. jjarvis says: May 3, 2011 6:34 PM

    The politics of the judge issue is getting blown out of proportion. Past politics matters in about 10% of the cases — and they usually concern constitutional issues like free speech/search and seizure/establishment clause cases. The rest of the cases, including labor disputes, are much less charged in partisanship and more likely to be decided on cold merits and especially standards of review. It may happen that Bye is the only vote to affirm the injunction, but it is unlikely to be because of their nominating presidents.

    Also, you should mention that rehearing en banc or panel rehearing is exceptionally unlikely. Even in a big case like this, unless the rest of the circuit thinks the panel was crazy or something new arises between the argument and the decision, there will be no panel or en banc rehearing.

  22. airraid77 says: May 3, 2011 6:39 PM

    nineroutsider,
    their were liberal judges appointed extremist left presidents…..2+1=3
    we now have 2 conservative judges in st louis….when the supreme court strikes down the nflpa 5-4? it will all even……….

  23. tommyf15 says: May 3, 2011 6:51 PM

    Air Raid- you know that concepts such as revenue sharing, salary caps, and drafts are liberal, socialist…perhaps even communistic by their very nature?

    I definitely love how some people toss the term “liberal” around without having a clue about what it means. Give this comment a thumbs down if you’re one of them.

  24. nineroutsider says: May 3, 2011 6:55 PM

    Here is the 8th Circuit’s active judge roster:

    Hon. William Jay Riley, Chief Judge – Omaha, NE – Appointed August 3, 2001 – Bush
    Hon. Roger L. Wollman – Sioux Falls, SD – Appointed July 22, 1985 – Reagan
    Hon. James B. Loken – Minneapolis, MN – Appointed October 17, 1990 – Bush
    Hon. Diana E. Murphy – Minneapolis, MN – Appointed October 11, 1994 – Clinton
    Hon. Kermit E. Bye – Fargo, ND – Appointed March 9, 2000 – Clinton
    Hon. Michael J. Melloy – Cedar Rapids, IA – Appointed February 14, 2002 – Bush
    Hon. Lavenski R. Smith – Little Rock, AR – Appointed July 19, 2002 – Bush
    Hon. Steven M. Colloton – Des Moines, IA – Appointed September 10, 2003 – Bush
    Hon. Raymond W. Gruender – St. Louis, MO – Appointed June 5, 2004 – Bush
    Hon. Duane Benton – Kansas City, MO – Appointed July 2, 2004 – Bush
    Hon. Bobby E. Shepherd – El Dorado, AR – Appointed October 10, 2006 – Bush

    Look at this, you need to do your your homework Raid…

  25. airraid77 says: May 3, 2011 7:00 PM

    do you know what collective bargaining is tommyf15? another child of communist education.

  26. airraid77 says: May 3, 2011 7:04 PM

    lets try some simple math nineroutsider, pay attention.
    Doty and nelson rule in favor of a union that doesnt exsist. THATS 2 liberals vs no conservatives.
    3 judge panel in stlouis rule on appeal. 1 liberal sides with UNION? thats3 nothing Libs.
    2 side with the owners ….that makes it 3 judges that are liberal….2 that are conservative.
    taken to the supreme and ruled 5-4 in FAVOR OF THE OWNER? makes it 7-7 AND OWNERS WIN.

  27. zeussuperman says: May 3, 2011 7:05 PM

    airraid77 says: May 3, 2011 5:26 PM

    aw the liberals are crying yet again…….and to think you have 3 liberal judges to 2………wait til the supreme court goes 5-4 conservative….the activism charges from the liberals will be all over the place.

    ——————

    Alert the conservatives — there was a child left way, way behind.

    I know Republicans are oh so proud of being ignorant hicks, but try to learn how and where to use punctuation, capitalization an ellipses before making all of us dumber for watching you struggle with these simple things. Thanks!

  28. palinforpresidentofnorthkorea says: May 3, 2011 7:23 PM

    Where’s Deb when the hammer of the Federal Court is about to whack De ‘Mo Money?

  29. tommyf15 says: May 3, 2011 7:51 PM

    airraid77 says:
    do you know what collective bargaining is tommyf15?

    Yes, I do.

    I also know that it can’t take place without a union.

    I even know that when using the English language, sentences begin with the first word capitalized.

    palinforpresidentofnorthkorea says:
    Where’s Deb when the hammer of the Federal Court is about to whack De ‘Mo Money?

    That may or may not be true- I think it’s waaaaaaaay too early for the owners or those that support them to be proclaiming victory.

  30. airraid77 says: May 3, 2011 8:08 PM

    THE SUM OF YOUR ARGUMENT IS INSULTS…TYPICAL LIBERAL.
    THE UNION DECERTIFIED, SUED, THEN GOT LOCKED OUT….THIS IS NOW THE PLAYERS DOING…..AND THEY WILL LOSE.

  31. nineroutsider says: May 3, 2011 8:17 PM

    tommyf15 – I respect your intelligent comments. However, the writing is on the wall now. George Bush’s sole mission in the White House was to blast the Federal Court system with very conservative judges. It is starting to payoff and it will be the gift that keeps giving. Make no mistake, the court system actually affects our daily lives more than any other branch of government. This is why they went after judges. The Court is also highly political, so don’t think that they will be applying the law through clear lenses. When I grew up I wanted to be a Supreme Court Justice, then I found out it is all politics – just done under a robe.

    Lastly, don’t mind AnalRoid, he was home schooled in the Ozarks (I had to pick somewhere). He just posted his most literate post yet though….YAY!

  32. stevecmh says: May 3, 2011 8:20 PM

    Don’t know Deb personally but I hope she has better things to do than read these pathetic comments.

    I know there are many here who think Deb is really Tom Brady in disguise, or some other NFL player, trying to slant the comments on this site. From my perspective, she and realitypolice are the voices of reason here.

    An earlier comment triumphantly suggested that federal law prohibits judges from issuing injunctions in labor disputes. I don’t know if that is true. However, I imagine its relevance hinges on the definition of “labor dispute”.

    If the NFLPA decertification is affirmed by the Appeals Court, then there is no labor dispute taking place because there is no union involved. That precedent was established in the early 90’s by Judge David Doty’s ruling against the NFL owners. Last month, Judge Susan Nelson ruled similarly on the players’ current anti-trust lawsuit.

    The Appeals Court will have to reverse both of those precedents, in order to side with the owners. It is possible they will find something different between the situation in the early 90’s and the situation now. However, I don’t think the fact that the players decertified before necessarily means they can’t do it again.

    P.S. Please take a moment to read your comments before posting. Sometimes, there are so many typos I can’t figure out what some of you are trying to say.

  33. hendawg21 says: May 3, 2011 9:32 PM

    My question why June 3rd? There is plenty of time lrft in May…are these the same people who had to come up with the 2011 budget geez no wonder the country is going to hell…

  34. eagleswin says: May 3, 2011 9:36 PM

    tommyf15 says:
    May 3, 2011 7:51 PM

    That may or may not be true- I think it’s waaaaaaaay too early for the owners or those that support them to be proclaiming victory.
    ————————
    I completely agree. This begs the question though, why have the player supporters been proclaiming victory since day 1? Shouldn’t the statement above apply equally?

  35. bronco1st says: May 4, 2011 12:02 AM

    You couldn’t fill a flea’s athletic cup with the collective brains in this site. Then only times there’s any intelligence around here is when the Rush Limbaugh and Glenn Beck shows are on.

  36. childressrulz says: May 4, 2011 12:48 AM

    Liberals are awesome! Conservatives just stand on their soap box all day and go home and hump their sisters at night.

  37. vomitingliberals says: May 4, 2011 1:39 AM

    Foolish liberals, lol. If the players win, the NFL becomes financially unstable within the next decade. If you don’t believe me, look at the Packers books. Since the last CBA, Green Bay’s profits plummeted from about 35 million in 1996 to what is now about 5 million. Player salaries have also risen an average of 10%- 15% each year in that time. Liberals, socialists, regressives, whatever you people call yourselves these days, don’t understand economics 101. This is currently an unsustainable business model in the long term, but for some reason you care nothing for the future of the NFL. You are more concerned that players be allowed to retire richer and richer, then you are for the health and sustainability of the league and it’s member franchises.

    Wake up! This shouldn’t be about childish instant gratification or about sticking it to the owners just because they are richer than most. Too many of you have bought into the socialist propaganda of the left in always assuming the rich are “evil”. The rich provide jobs and entertainment to you, one product of which is the NFL. Take heed, if you make the NFL an undesireable business venture for future potential franchise purchasers, THERE WILL EVENTUALLY BE NO MORE NFL! Wanna know why your ticket prices, concessions, memorabilia, and cable sports packages cost so much? Try the endlessly expanding player salary base! You are paying for their pilaging of the league you claim to love. Put an end to it and support the owners. If you love your team and the league itself, the players must be defeated.

  38. anthonyfromstatenisland says: May 4, 2011 6:16 AM

    Leave liberal and conservative out of this please.

    I’m liberal – at least on economic issues anyway – yet I’m 100% on the side of the owners here, because if the players win, the NFL will become a carbon copy of MLB – or worse.

  39. MichaelEdits says: May 4, 2011 6:33 AM

    How does staying with this story appeal to anybody?

  40. jc1958cool says: May 4, 2011 6:42 AM

    players will appeal a permanent stay, and football will not be played, because of crybaby conservatives that can’t get their way!!!!!!!!!!!
    owners think $$$ rules all, TURDS

Leave a Reply

You must be logged in to leave a comment. Not a member? Register now!