Respondent avers that, on June 9,
1986, it appealed this Final Order to the United States Court of Appeals for
the Seventh Circuit, that there is a substantial likelihood
that Respondent will prevail in its appeal, and that Respondent
will suffer irreparable injury if it is forced to pay Complainant
as ordered.
Respondent's motion for a stay pending a decision on its
appeal to the Seventh Circuit is denied. I do not find that
justice requires that I grant the stay. 5 U.S.C. § 705 (1982).
In so determining, I have considered the factors applied by
the Seventh Circuit in granting stays of orders issued by
administrative agencies. These factors are (1) the likelihood that
petitioner will prevail on the merits of the appeal; (2) that
petitioner will suffer irreparable injury; (3) that the stay
will cause substantial harm to other interested persons; and
(4) where the public interest lies. Commonwealth-Lord Joint
Ventures v. Donovan , 724 F.2d 67, 68 (7th Cir. 1983) citing
Adams v. Walker , 488 F.2d 1064 (7th Cir. 1973).
It is clear that Respondent has failed to meet at least
one of these criteria -- i.e., has failed to show that it would
suffer irreparable injury. Respondent's claim of irreparable
injury is based on its belief that, if it prevails on the merits,
it probably will be unable to recover the money damages, including
attorney fees, which it has been ordered to pay. Respondent's
Motion For Stay Pending Review, paragraphs #3, 4 and 5. However,
even if this is so, it does not constitute a basis for a finding
that Respondent will suffer irreparable injury. As noted in
Holland American Insurance Company v. Rogers , 308 F. Supp. 1031
(N. D. Cal. 1970), a case arising under the Longshoremen's
and Harbor Worker's Compensation Act, 33 U.S.C. §§ 901-950 (1982):
The Respondents argue that if they are successful
on their petiton for review they will nonetheless
be unable to seek reimbursement of the amounts paid
due to the financial situation of Angela Spies.
It is well settled, however, that the Claimant's
financial irresponsibility even if proven, does not
constitute a showing of such "irreparable damage"
as within the meaning of the Act would justify granting
an interlocutory injunction. E.g. Employers'
Mutual Liability Insurance "Company of Wisconsin v.
McClellan, 290 F. Supp. 910, 911 (S.D.N.Y. 1967);
Travelers Insurance Company v. Belair, 284 F. Supp.
168, 170 (D. Mass. 1968); Higgins, Inc. v. Donovan
249 F. Supp. 941, 942 (E.D. La. 1966) aff'd, 373
F. 2d 18 (5th Cir. 1967); Alabama Dry Dock & Ship-
building Co. v. Henderson, 98 F. Supp. 1001, 1003
(S.D. Ala. 1951); Seas Shipping Co. v. Cardillo,
86 F. Supp. 531, 533 (E.D.N.Y. 1949); Pioneer
Engineering Co. v. Cardillo, 68 F. Supp. 743, 744
(E.D. Pa. 1946); American Shipbuilding Co. v. McManigal,
65 F. Supp. 297, 298 (W.D. N.Y. 1946); Tucker v. Norton,
47 F. Supp. 762, 763 (E.D. Pa. 1942) aff'd without
opinion, 134 F.2d 172 (3rd Cir. 1943); Luckenbach
S. S. Co. v. Norton, 21 F. Supp. 707, 709 (E.D. Pa.
1937). This is true even where the claimant is shown
to be isolvent. Jones v. Shepherd, 20 F. Supp. 345,
346 (S.D. Miss. 1937).
Accordingly, Respondent's motion for a stay of my April 17,
1986 order is denied.
SO ORDERED.
WILLIAM E. BROCK
[ENDNOTES]
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