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Same judges who are handling stay request will handle appeal


Far more significant than the news, courtesy of Albert Breer of NFL Network, that the U.S. Court of Appeals for the Eighth Circuit will hear on June 3 oral arguments regarding the appeal of Judge Susan Nelson’s order lifting the lockout is the news that the same three judges who handled the league’s motion for a temporary stay and who are handling the motion for a stay pending resolution of the appeal will handle the review of Judge Nelson’s ruling.

On Monday, court clerk Michael Gans told PFT that “a motions panel may keep a case for the final decision if it has done a substantial amount of work on the case and determines reassignment would not be an efficient use of judicial resources.” That’s apparently what the Eighth Circuit decided to do in this case.

Judge Duane Benton and Judge Steven M. Colloton, both of whom voted to grant the temporary stay, were nominated by President George W. Bush. Judge Kermit Bye, who vehemently opposed the temporary stay, was nominated by President Clinton. Judge Bye’s comments in the wake of the issuance of the temporary stay indicated that he is leaning heavily against granting a full stay.

Applying very superficial and cursory ideological considerations, Judge Benton and Judge Colloton will be inclined to rule in favor of business interests, and Judge Bye will be inclined to favor labor interests. That said, plenty of judges depart from the partisan mindsets that positioned them for federal judicial appointments once a job for life has been secured.

As we explained last week, the eventual ruling could turn on the standard of review that applies to the various aspect of Judge Nelson’s decision. Generally speaking, decision to grant motions for so-called “preliminary injunctions” are overturned only if the judge abused his or her discretion. Lawyer David Boies told PFT Live last week that, in his view, certain aspects of Judge Nelson’s ruling should be reviewed from scratch, with no deference being extended to her reasoning or result.

We’ll know more about the specifics of the parties’ arguments soon. The league’s brief is due May 9, and the players’ response will be filed on or before May 20. The NFL gets the last word, on May 26.

Still unknown is whether Judge Benton and Judge Colloton will decide to grant the full stay. If only one of them agrees with Judge Bye, the lockout will be lifted pending resolution of the appeal. If both judges find that the stay should be granted, there will be a whole lot of nothing going on in the NFL between now and the resolution of the appeal.