Barnes v. E-Systems Inc. Group Hospital Medical & Surgical Insurance Plan
Justice SCALIA, Circuit Justice.
Texas state officials responsible for the collection of taxes and the regulation of insurance seek a stay of the judgments of the Court of Appeals for the Fifth Circuit in these two sets of consolidated cases, pending action by this Court on their intended petition for certiorari. The judgments at issue upheld decisions by the United States District Court for the Western District of Texas which declared the Texas Administrative Services Tax Act, Tex.Ins.Code Ann. art. 4.11A (Supp.1991), to be preempted by the Employee Retirement Income Security Act (ERISA), 88 Stat. 829, as amended, 29 U.S.C. § 1001 et seq. (1988 ed. and Supp. I), enjoined its enforcement, and directed the State to issue refunds to the challenging taxpayers. E-Systems, Inc. v. Pogue, 929 F.2d 1100 (CA5 1991).
The authority for a single Justice to issue a stay of the sort requested here is conferred by 28 U.S.C. § 2101(f). Before the predecessor to that provision was enacted in 1925, see Act of Feb. 13, 1925, 43 Stat. 940, similar action could be taken by the Court by issuing a supersedeas under the All Writs Act, 28 U.S.C. § 1651. See Magnum Import Co. v. Coty, 262 U.S. 159, 43 S.Ct. 531, 67 L.Ed. 922 (1923); Ex parte The Milwaukee Railroad Co., 72 U.S. (5 Wall.) 188, 190, 18 L.Ed. 676 (1867); Hardeman v. Anderson, 45 U.S. (4 How.) 640, 642-643, 11 L.Ed. 1138 (1846). Under § 2101(f), as under the All Writs Act and the prior common law, a stay issues not of right but pursuant to sound equitable discretion; "it requires," as Chief Justice Taft said, "a clear case and a decided balance of convenience." Magnum Import Co., supra, 262 U.S., at 164, 43 S.Ct., at 533.
The practice of the Justices has settled upon three conditions that must be met before issuance of a § 2101(f) stay is appropriate. There must be a reasonable probability that certiorari will be granted (or probable jurisdiction noted), a significant possibility that the judgment below will be reversed, and a likelihood of irreparable harm (assuming the correctness of the applicant's position) if the judgment is not stayed. Times-Picayune Publishing Corp. v. Schulingkamp, 419 U.S. 1301, 1305, 95 S.Ct. 1, 4, 42 L.Ed.2d 17 (Powell, J., in chambers). In my view all three of these conditions are met here.