Respondent, Guaranteed Overnight Delivery, has moved for a stay of
the Board's Final Decision and Order (D. and O.), issued September 5, 1996 pursuant to the
employee protection provision of the Surface Transportation Assistance Act of 1982, 49 U.S.C.A.
§ 31105 (1994) in the above-captioned case. The D. and O. orders Respondent to reinstate
Complainant Peter Bigham (Bigham) to his former position together with full back pay with
interest, fringe benefits and compensatory damages. Respondent avers that, on October 31, 1996,
it appealed this D. and O. to the United States Court of Appeals for the First Circuit. Respondent's
motion is unaccompanied by affidavits or other supporting documents.
The courts have developed a four-part test to determine the
appropriateness of a stay request and the Secretary of Labor has applied the same standards in
deciding whether to stay his own decisions. See Office of Federal Contract Compliance
Programs v. The University of North Carolina, Case No. 84-OFC-20, Sec. Order Denying
Stay, April 25, 1989, slip op. at 3-4, citing Virginia Petroleum Jobbers Ass'n. v. Federal
Power Commission, 259 F.2d 921 (D.C. Cir. 1958); Rexroat V. City of New
Albany, Case No. 85-WPC-3, Sec. Order Denying Stay, October 8, 1986, slip op. at 2. The
factors the court set forth in Petroleum Jobbers are:
1) Has the [party seeking a stay] made a strong showing that it is likely to prevail
on the merits of its appeal?
* * * *
[Page 2]
2) Has the petitioner shown that without such relief, it will be irreparably
injured? The key word in this consideration is irreparable. Mere injuries,
however substantial, in terms of money, time and energy necessarily expended
in the absence of a stay, are not enough.
* * * *
3) Would the issuance of a stay substantially harm other parties interested in the
proceedings?
* * * *
4) Where lies the public interest? In litigation involving the administration of
regulatory statutes designed to promote the public interest, this factor
necessarily becomes crucial. The interests of private litigants must give way
to the realization of public purposes.
259 F.2d at 925.
Upon consideration of these factors and in light of Respondent's failure
to produce any evidence in support of its motion, we find that justice does not require us to grant a
stay of the D. and O. and, therefore, Respondent's motion is denied. 5 U.S.C. § 705
(1988). Neither a mere possibility of success on appeal nor certain economic loss in the interim is
sufficient to warrant a stay. SeeRexroat, supra, at 2-3; see also
Spinner v. Yellow Freight System. Inc., Case No. 90-STA-17, Sec. Order Denying
Application for Stay, Sept. 25, 1991, slip op. at 5, citing Commonwealth-Lord Joint Venture
v. Donovan, 724 F.2d 67, 68 (7th Cir. 1983).
SO ORDERED.
DAVID A. O'BRIEN Chair
KARL J. SANDSTROM Member
JOYCE D. MILLER Alternate Member
[ENDNOTES]
1 On April 17, 1996, a
Secretary's Order was signed delegating jurisdiction to issue final agency decisions under this statute to the
newly created Administrative Review Board. 61 Fed. Reg. 19978 (May 3, 1996). Secretary's Order 2-96
contains a comprehensive list of the statutes, executive order, and regulations under which the
Administrative Review Board now issues final agency decisions. Final procedural revisions to the
regulations (61 Fed. Reg. 19982), implementing this reorganization were also promulgated on that date.
