In briefs and during recent hearings, United States Fish and Wildlife Service USFWS) informed the United States District Court for the District of Columbia that it would take 75 days to determine whether to appeal the preliminary injunction (PI) granted to USARK. However, the Federal Rules of Appellate Procedure appear to only provide 60 days in which a United States agency may file a Notice of Appeal. [Rule 4(a)(1)(B)(ii)] Nonetheless, USFWS requested a stay of the PI for 75 days.

In his order, United States District Court Judge Randolph D. Moss stayed most of the proceedings in the Federal District Court for 60 days or until the termination of any appeal of the PI. Judge Moss did not technically stay the PI, but he effectively did so temporarily by making the PI effective 14 days after his order, on Tuesday, June 2, 2015.

If it files a notice of appeal, USFWS may again seek a stay of the PI for the pendency of such appeal. It also appears that USFWS could technically file immediately for a stay of the PI with the United States Court of Appeals. [Rule 8(a)]

However, it seems unlikely the Court of Appeals would be inclined to take such a motion for stay very seriously if USFWS did not simultaneously file a notice of appeal. Why? The District Court has already considered and denied any stay of the PI beyond the 14 days already allowed through June 2, 2015.

Moreover, if USFWS sees the reversal of the PI as an extraordinarily important issue, then it should be able to expedite the administrative procedure for filing a notice of appeal.

During the hearing, USFWS stated that it was time consuming to get administrative permission to appeal because an appeal had to be authorized by the Solicitor General, and also involved Department of Justice lawyers at the trial and appellate levels, as well as a number of folks at USFWS and The Department of Interior, at various levels.

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