Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog

• Decision Date: 24 September 1991
• Docket Number: No. 91-1801,91-1801
• Parties: , 21 Envtl. L. Rep. 21,472 MICHIGAN COALITION OF RADIOACTIVE MATERIAL USERS, INC., Plaintiff-Appellee, v. Jerry GRIEPENTROG, Director of Resources; Christine Gregoire, Director of the Washington Department of Ecology; John P. Pate, Chairman of the South Carolina Board of Health and Environmental Control, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 150

945 F.2d 150

20 Fed.R.Serv.3d 1177, 21 Envtl. L. Rep. 21,472

MICHIGAN COALITION OF RADIOACTIVE MATERIAL USERS, INC., Plaintiff-Appellee, v. Jerry GRIEPENTROG, Director of Resources; Christine

Gregoire, Director of the Washington Department of Ecology;

John P. Pate, Chairman of the South Carolina Board of Health

and Environmental Control, Defendants-Appellants.

No. 91-1801.

United States Court of Appeals, Sixth Circuit.

Submitted Aug. 8, 1991.

Decided Sept. 24, 1991.

Charles J. Cooper, David R. Lewis, Shaw, Pittman, Potts & Trowbridge, Washington, D.C., Max R. Hoffman, Jr., Richard C. Kraus, Farhat, Story & Kraus, Charles R. Toy, East Lansing, Mich., Michael S. Green, House Republican Programs & Policies, Lansing, Mich., for plaintiff-appellee.

David J. Bloss, Roberts, Betz & Bloss, Grand Rapids, Mich., Frankie Sue Del Papa, Nancy Ford Angres, Atty. General's Office, Dept. of Human Resources, Carson City, Nev., for Jerry Griepentrog, Director, of the Nevada Dept. of Human Resources.

David J. Bloss, Roberts, Betz & Bloss, Grand Rapids, Mich., Allen T. Miller, Jr. (briefed), Olympia, Wash., Kenneth O. Eikenberry Atty. General's Office, State of Wash., Olympia, Wash., for Christine Gregoire, Director, of the Washington Dept. of Ecology.

David J. Bloss, Roberts, Betz & Bloss, Grand Rapids, Mich., Walton J. McLeod, III, Samuel L. Finklea, III, Dept. of Health & Environmental Control, Office of Gen. Counsel, T. Travis Medlock, James Patrick Hudson, Atty. General's Office, Columbia, S.C., for John P. Pate, Chairman, of South Carolina Bd. of Health and Environmental Control.

Before MARTIN and NELSON, Circuit Judges; and JARVIS, District Judge. ^*

BOYCE F. MARTIN, Jr., Circuit Judge.

The defendants in this action have filed a motion pursuant to Fed.R.App.P. 8(a) seeking a stay of the judgment and a permanent injunction pending their appeal of the district court's grant of summary judgment in favor of the plaintiff. 769 F.Supp. 999. For the reasons outlined below, we hereby grant the stay. This opinion will clarify the standards we apply in reviewing an application for a stay of judgment pursuant to Fed.R.App.P. 8(a).

The defendants are heads of agencies delegated by the states of Nevada, Washington, and South Carolina, to administer the operation of low-level radioactive waste disposal sites located in these states. There are only three such sites in the United States: the Beatty site in Nevada, the Richland site in Washington, and the Barnwell site in South Carolina. These "sited states", as they are called, objected to the handling of low-level nuclear waste generated by other states and attempted to restrict access to their disposal systems. Congress responded by passing the Low-Level Radioactive Waste Policy Act in 1980 in an effort to motivate other states to assume some of the burden for disposal of such waste. Because progress was not as rapid as hoped, Congress amended the Act in 1985, adding specific incentives and penalties to encourage other states to develop disposal capacities by December 31, 1992. 42 U.S.C. § 2021b et seq. Pursuant to the scheme established by the amended Act, specifically provisions (b) through (g) of § 2021e, the sited states are required to make their disposal capacity available for low-level radioactive waste from non-sited states for the period between January 1, 1986, through December 31, 1992.

In 1990, the defendants concluded that Michigan was not in compliance with the Act and effective November 10, 1990, denied waste generators in Michigan access to their disposal facilities. The plaintiff, the Michigan Coalition of Radioactive Material Users, Inc., is an association whose members engage in the use of radioactive materials and who generate low-level radioactive waste. MICHRAD, as the Coalition calls itself, filed suit seeking declaratory and injunctive relief prohibiting the defendants from denying MICHRAD access to the waste disposal facilities located in the defendants' states. The parties filed cross motions for summary judgment. The district court granted judgment in favor of MICHRAD, finding that Michigan had complied with the requirements of the Act and that the defendants had no authority to deny waste generators in Michigan access to the sited states' facilities prior to January 1, 1993. The district court permanently enjoined the defendants from denying access to disposal facilities in their respective states for disposal of low-level radioactive waste generated in Michigan prior to January 1, 1993. An appropriate appeal has followed.

Pursuant to Rule 8(a) of the Federal Rules of Appellate Procedure, 28 U.S.C. Rules, the defendants now request us to issue an order staying the district court's judgment and granting them a permanent injunction. Ordinarily, Rule 8(a) requires that such a motion be made in the first instance in the district court. However,

[a] motion for such relief may be made to the court of appeals or to a judge thereof, but the motion shall show that the application to the district court for the relief sought is not practicable, or that the district court has denied an application, or has failed to afford the relief which the applicant requested.

Fed.R.App.P. 8(a). In this case, the defendants did file a motion for stay of judgment and permanent injunction pending appeal in the district court. The district court denied both of defendants' motions, concluding that the potential harm to defendants in the absence of a stay is outweighed by public safety concerns in the state of Michigan.

In determining whether a stay should be granted under Fed.R.Civ.P. 8(a), we consider the same four factors that are traditionally considered in evaluating the granting of a preliminary injunction. See Frisch's Restaurant, Inc. v. Shoney's Inc., 759 F.2d 1261, 1263 (6th Cir.1985); In re DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir.1985). These well-known factors are: (1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay. Ohio ex rel. Celebrezze v. Nuclear Regulatory Comm'n, 812 F.2d 288, 290 (6th Cir.1987); see also Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 2118-2119, 95 L.Ed.2d 724 (1987) (factors are the same under Fed.R.Civ.P. 62(c) and under Fed.R.App.P. 8(a)). These factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together. DeLorean, 755 F.2d at 1229.

Although the factors to be considered are the same for both a preliminary injunction and a stay pending appeal, the balancing process is not identical due to the different procedural posture in which each judicial determination arises. Upon a motion for a preliminary injunction, the court must make a decision based upon "incomplete factual findings and legal research." Roth v. Bank of the Commonwealth, 583 F.2d 527, 537 (6th Cir.1978), cert. dismissed, 442 U.S. 925, 99 S.Ct. 2852, 61 L.Ed.2d 292 (1979). Even so, that decision is generally accorded a great deal of deference on appellate review and will only be disturbed if the court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard. NAACP v. City of Mansfield, 866 F.2d 162, 166-167 (6th Cir.1989) (quoting Christian Schmidt Brewing Co. v. G. Heileman Brewing Co., 753 F.2d 1354, 1356 (6th Cir.), cert. dismissed, 469 U.S. 1200, 105 S.Ct. 1155, 84 L.Ed.2d 309 (1985)).

Conversely, a motion for a stay pending appeal is generally made after the district court has considered fully the merits of the underlying action and issued judgment, usually following completion of discovery. As a result, a movant seeking a stay pending review on the merits of a district court's judgment will have greater difficulty in demonstrating a likelihood of success on the merits. In essence, a party seeking a stay must ordinarily demonstrate to a reviewing court that there is a likelihood of reversal. Presumably, there is a reduced probability of error, at least with respect to a court's findings of fact, because the district court had the benefit of a complete record that can be reviewed by this court when considering the motion for a stay.

To justify the granting of a stay, however, a movant need not always establish a high probability of success on the merits. Ohio ex rel. Celebrezze, 812 F.2d at 290 (citing Cuomo v. United States Nuclear Regul. Comm'n, 772 F.2d 972, 974 (D.C.Cir.1985)). The probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury plaintiffs will suffer absent the stay. Id. Simply stated, more of one excuses less of the other. This relationship, however, is not without its limits; the movant is always required to demonstrate more than the mere "possibility" of success on the merits. Mason County Medical Ass'n v. Knebel, 563 F.2d 256, 261 n. 4. (6th Cir.1977). For example, even if a movant demonstrates irreparable harm that decidedly outweighs any potential harm to the defendant if a stay is granted, he is still required to show, at a minimum, "serious questions going to the merits." DeLorean, 755 F.2d at 1229 (quoting Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 105 (6th Cir.1982)).

In evaluating the harm that will occur depending upon whether or not the stay is granted, we generally look to three factors: (1) the substantiality of the injury alleged; (2) the likelihood of its occurrence; and (3) the adequacy of the proof provided. Ohio ex rel. Celebrezze, 812 F.2d at 290 (citing Cuomo, 772 F.2d at 977). In evaluating the degree of injury, it is important to remember that

[t]he key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and...