Opinion
No. 2:96-cr-0259-GEB.
August 28, 2006
ORDER
On August 21, 2006, Defendant filed an application to stay the Orders filed August 10, 2006, ("August 10 Orders"), "which approve, in large part, the . . . plan for the sale of [his] property." (Def.'s Application to Stay, filed Aug. 21, 2006, at 1.) The scope of the stay Defendant seeks is ambiguous because his application could be interpreted as requesting a stay of the sale, but not the preparations for such a sale, and also could be interpreted as requesting a stay of the sale as well as sale preparations. (See id. at 1-2.) Consequently, clarification is needed regarding the scope of the requested stay, specifically, whether the requested stay would affect the sale preparations authorized by the August 10 Orders.
Therefore, Defendant shall file a document no later than August 29, 2006, that clarifies the scope of the requested stay and discusses "the factors regulating the issuance of a stay . . . (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Hilton v. Braunskill, 481 U.S. 770, 776 (1987);Overstreet v. Thomas Davis Medical Centers, 978 F. Supp. 1313, 1314 (D. Ariz. 1997); Digital Commc'n Network, Inc. v. AB Cellular Holding, 1999 WL 1044234, *3 (C.D. Cal. 1999); Envtl. Prot. and Info. Ctr. v. U.S. Forest Serv., 2006 WL 2084856, *2 (E.D. Cal. 2006). If the government and/or the Named Victims wish to address these factors, or to respond to any other issue concerning the application for a stay, the response shall be filed no later than September 1, 2006.
In his application, Defendant argues a stay pending appeal "is appropriate where the party requesting the stay shows `either (1) a probability of success on the merits and the possibility of irreparable harm, or (2) that serious legal questions are raised and the balance of hardships tips sharply in the [moving party's] favor.'" (Def. Application to Stay at 1.) However, the standard Defendant cites "is not on point . . . because it deals with a party's request for pre-litigation preliminary injunctive relief." McAfee v. United States, 2006 WL 829135, *2 (E.D. Cal. 2006). The standard articulated by the Supreme Court in Hilton applies when a party seeks a stay pending appeal. Id.; Digital Comm'n Network, 1999 WL 1044234, at *4.
IT IS SO ORDERED.