In a preview of the realities of appellate legal practice, the three judges who handled the league’s motion for a temporary stay of the lifting of the lockout pending consideration of the motion for a stay of the lifting of the lockout pending appeal did not agree that the NFL deserved a temporary stay.
Judge Kermit E. Bye opposed the decision of Judge Duane Benton and Judge Steven M. Colloton to allow the league to reinstate the lockout. And Judge Bye said so via a seven-paragraph explanation, six paragraphs longer than the three-sentence order granting the temporary stay.
“In my tenure as an appellate judge, the only circumstances I can recall in which the power to grant a temporary stay has been invoked by a party, and exercised by our court, have been circumstances which truly qualify as emergencies,” Judge Bye wrote. “For example, I have granted such a request on behalf of an immigrant who has filed a petition with our court to review a removal order entered by the Bureau of Immigration Appeals (BIA), when the immigrant’s removal date was imminent and the government had not yet responded to the immigrant’s request for a stay of removal pending our review of the petition. Another situation in which a temporary stay, pending review of a motion for a stay itself, may be appropriate is in a death penalty case where an execution date has been set and is imminent.”
Judge Bye then explained that, in his view, the predicament facing the NFL hardly constitutes an emergency.
He also didn’t buy the fact that the NFL wouldn’t be able to comply with the requirement of lifting the lockout while the Eighth Circuit considers the motion to stay the injunction pending appeal.
"[T]he initial reason the NFL requested such a temporary stay while we waited to hear from the Players, was to prevent the NFL from being forced to undertake post-injunction operations,” Judge Bye said. “The NFL claimed such operations would be ‘a complex process that requires time to coordinate.’ This contention is severely undermined by the fact that the NFL had, within a day of the district court’s order denying a stay, already planned post-injunction operations which would allow the players to have access to club and workout facilities, receive playbooks, meet with coaches, and so forth. Because I expect our court will be resolving the actual request for a stay in short order, I see little practical need for granting an emergency temporary stay in this non-emergency situation.”
In the end, Judge Bye’s beliefs didn’t matter, because two judges trump one on any three-judge panel. With a pool of 16 judges on the Eighth Circuit, the ultimate question of whether the lockout will stand hinges on the arbitrary and random process of picking the three judges who will handle the review of Judge Nelson’s decision.