This post is one of those instances. A few weeks ago, I had what others would now describe as the not-so-bright idea of seeing how movants fared in Federal Rule of Appellate Procedure8 (or FRAP 8) motions in the Federal Circuit. I thought this might be “interesting” and “useful.”

Unless impracticable, a party must move first in the district court. Fed. R. App. P. 8(a). If, however, the district court denies the motion, or fails to grant the requested relief (the situation here), the party may seek a stay of the district court’s judgment or order, or an order “suspending, modifying, restoring, or granting an injunction” pending appeal, from the Court of Appeals.

Generally, a party must seek a stay in district court first, before seeking such relief in an appellate court. Fed. R. App. P. 8(a)(1). The best practice is to seek a stay in the district court immediately after an appellate court agrees to hear an interlocutory appeal.

With the appeal docketed, you can seek from the court of appeals either a stay or injunction pending appeal, an expedited briefing schedule, or both. Under Federal Rule of Appellate Procedure 8, you can seek a stay pending appeal from the court of appeals if the district court denied or failed to act on your motion for the same relief below; seeking a stay from the court of appeals in the first instance is allowed only if moving in the district court would be impracticable. In seeking relief from the court of appeals, you should be sure to include a request for an interim stay or injunction, which a single judge may grant as an administrative matter in order to give a full three-judge motions panel an opportunity to rule on a full stay or injunction pending appeal.

The court also addressed whether to stay the entire case during the pendency of Fera’s appeal of the preliminary injunction. Interestingly, Fresenius did not bring its motion to stay the case under either Fed. R. Civ. P. 62(c) or Fed. R. App. P. 8, because as the court noted, the standard for granting a stay under each rule requires a showing similar to what is required to obtain a preliminary injunction. As such, a request to stay under one of these mechanisms would fail because as the beneficiary of the injunction, Fresenius could not show irreparable harm in the absence of a stay.

Not surprisingly, the Court denied the motion on both grounds on April 15, 2015. Two days later, on April 17, 2015, Amgen filed an emergency motion for an injunction pending appeal pursuant to Fed. R. App. P. 8(a). To grant this motion, the Federal Circuit will need to determine "(1) whether the movant has made a strong showing of likelihood of success on the merits; (2) whether the movant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceedings; and (4) where the public interest lies."