Commonwealth-Lord Joint Venture v. Donovan, COMMONWEALTH-LORD
| Decision Date | 30 December 1983 |
| Docket Number | COMMONWEALTH-LORD,No. 83-2727,83-2727 |
| Citation | 724 F.2d 67 |
| Parties | JOINT VENTURE, Petitioner, v. Raymond DONOVAN, Secretary of Labor, United States Department of Labor, and Melbert J. Landers, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Paul M. Schudel, Woods, Aitken, Smith, Greer, Overcash & Spangler, Lincoln, Neb., Mark Crane, Hopkins & Sutter, Chicago, Ill., C. Dant Kearns, Stites & Harbison, Louisville, Ky., for petitioner.
Denise Butler Harty, U.S. Dept. of Labor, Sol., Washington, D.C., Thomas M. Dattilo, Madison, Ind., Frank E. Spencer, Indianapolis, Ind., for respondent.
Before CUMMINGS, Chief Judge, and POSNER and COFFEY, Circuit Judges.
We have before us a motion by Commonwealth-Lord Joint Venture under Fed.R.App.P. 18 for a stay of administrative action pending our decision on the merits of Commonwealth-Lord's petition for review of that action. An administrative law judge ordered Commonwealth-Lord to reinstate a "contract employee" on the ground that the employee (a weld inspector) had been discharged for engaging in activity protected by the Energy Reorganization Act, in violation of 42 U.S.C. Sec. 5851(c); and his recommended decision and order were adopted in their entirety by the Secretary of Labor. The order of reinstatement approved by the Secretary is the action that Commonwealth-Lord has petitioned this court to review and set aside, and is also the action that it wants us to stay pending review.
Rule 18 of the Federal Rules of Appellate Procedure provides that the application for stay "shall ordinarily be made in the first instance to the agency." Commonwealth-Lord asked the Secretary, after the administrative law judge rendered his decision, to stay that decision pending review. The Secretary never formally acted on the request, but his decision of September 9, 1983, adopting the administrative law judge's order in its entirety without reference to the request, was tantamount to a denial of it. Commonwealth-Lord did not ask the Secretary for a stay of his order pending review in this court, but points out that such a request would certainly have been denied in light of the Secretary's previous action in adopting the administrative law judge's decision in its entirety without reference to the request for a stay of that decision pending review. Rule 18 states the requirement of applying to the agency for a stay before asking us for one in flexible terms and is...
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...licensing proceedings. As with a stay of a district court order in a civil proceeding pending appeal, e.g., Commonwealth-Lord Joint Venture v. Donovan, 724 F.2d 67, 68 (7th Cir.1983), the determination of whether a stay of an agency's order is warranted must be based on a balancing of four ......
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...branches of government. We have made this clear even for orders denominated "stays" by Appellate Rule 18. See Commonwealth-Lord Joint Venture v. Donovan, 724 F.2d 67 (7th Cir.1983); Adams v. Walker, 488 F.2d 1064 (7th Cir.1973). To satisfy this standard the applicant must show that the prob......