We have previously posted on the August 17 opinion by Judge Anna Diggs Taylor (E.D. Mich.) declaring the NSA's domestic wiretap and surveillance program unconstitutional and in violation of FISA and Title III. Her decision has been the subject of considerable criticism from political as well as legal circles. The Government appealed Judge Taylor's ruling to the Sixth Circuit (Case No. 06-2095).
On October 4, a panel of the Court (Circuit Judges Batchelder, Gilman and Gibbons) issued an Order unanimously granting the Government's request for a stay of Judge Taylor's injunction pending the appeal. Thus, the district court order enjoining the Government from conducting the NSA Terrorist Surveillance Program ("TSP") in any way that would contravene FISA and Title III, "including . . . conducting warrantless wiretaps of telephone and internet communications," was stayed pending the outcome of the Sixth Circuit's consideration of the merits.
While many commentators have suggested that the import of the Court's stay is that it supposedly presages the panel's intention to reverse Judge Taylor on the merits, the most intriguing aspect of the panel's Order is its use of the standard for stays pending appeal taken from Grutter v. Bollinger, 247 F.3d 631, 633 (6th Cir. 2001), and Michigan Coalition of Radioactive Material Users v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991).
The Grutter/Michigan Coalition test allows a stay to be granted, even if the party requesting the stay has not demonstrated the traditional "substantial likelihood" of success on the merits, if it can show that the irreparable harm to it from the underlying order absent a stay would outweigh any potential harm to the nonmoving party if the stay were granted. In this fashion, the greater the harm that is shown, the less likely a party's success on the merits has to be. Thus, the degree of "success on the merits" that must be demonstrated is "inversely proportional to the harm." If the harm to a moving party "decidedly outweighs" any potential harm to the nonmoving party if a stay is granted, then all the moving party must show at a minimum are "serious questions going to the merits" rather than a "substantial likelihood of success on the merits."
The panel found the more lenient Grutter/Michigan Coalition standard "has been met in this case." That does not necessary signal the panel's conclusions on the merits beyond findng that the appeal raises serious questions regarding the merits. It more probably reflects the panel's determination that the potential harm to the Government's efforts to fight terrorism from denying the stay and leaving the injunction against the TSP in force decidedly outweighs any harm to the plaintiffs or the public from granting the stay. The panel's Order granting a stay pending appeal is not necessarily the broader prediction of the eventual outcome of the case that critics of Judge Taylor's opinion wish it were.