Supreme Court Issues Decision that Maintains the Flexibility of Appellate Courts to Stay Government Orders Pending Appeal

By JP Ellison & John R. Fleder –

The Supreme Court’s April 22, 2009 decision in NKEN v. HOLDER relates to expediting the removal of aliens from this country.  The decision merits mention here because it preserves the ability of appellate courts to stay government action pending an appeal.  Regulated companies should remember that the government’s view, and even the view of a trial court, may not be the final word.  Appellate review of trial courts and administrative actions plays an important role in our system, and the Court’s decision reinforces that point.  This decision also has an interesting discussion of what the Court described as the differences between a “stay” and an “injunction”