SCOTUS Dockets Epic’s Emergency Application to Vacate Stay of Mandate in Apple Appeal

The U.S. Supreme Court docketed Epic Games’ July 25 emergency application (docket 23A78) asking Justice Elena Kagan to vacate the stay of the appellate mandate issued by the 9th U.S. Circuit Court of Appeals, or in the alternative, to vacate the court’s stay pending appeal. The stay is preventing enforcement of the injunction that Epic won in the district court to enjoin Apple from imposing its anti-steering rules against mobile app developers. Kagan is Supreme Court justice for the 9th circuit.

The rules prohibit developers from directing iPhone users to less-expensive ways to pay for digital goods they use in apps, said Epic’s application. The rules’ main effects “are thus to deprive consumers of accurate information that would save them money and, concomitantly, to generate for Apple hundreds of millions of dollars annually in supracompetitive profits,” it said.

The 9th Circuit in this case granted a stay “only by applying its erroneously lax legal standard,” said the application. Because the result “will be to injure not only Epic but innumerable consumers and other app developers for a significant period of time," SCOTUS should vacate the 9th Circuit’s stay, it said.

A 9th Circuit motions panel granted Apple a stay of the injunction, providing that the stay pending appeal would be lifted when the 9th Circuit issues its mandate after a decision on the merits, said the application. A unanimous 9th Circuit merits panel subsequently rejected Apple’s defense of the anti-steering rules, and the full court then denied Apple’s petition for rehearing en banc, it said.

The rehearing denial “ordinarily would cause the mandate to issue in seven days,” and that would “automatically terminate the 9th Circuit’s stay pending appeal of the injunction, said the application. But the 9th Circuit granted Apple’s motion for a stay of the mandate, pending its forthcoming filing of a cert petition at the Supreme Court, in which it seeks to prevent the injunction from taking effect at least for several months, it said.

The 9th Circuit’s legal standard for granting a stay of the mandate pending cert can’t be “reconciled” with SCOTUS “precedents,” said the application. Those precedents articulating the legal standard for a stay of the mandate “at bottom ask whether it is appropriate to put the court of appeals’ ruling on hold because there is a realistic prospect that it will be overturned,” it said.

A stay is thus “a limited and rare exception to the rule that the mandate issues as a matter of course,” said the application. A stay “imposes significant costs on the party denied the rightful benefit of the appellate ruling in its favor,” it said. A petitioner has 90 days by default to seek cert, a period that’s often extended to 150 days, it said. With a “single extension” of the time to respond, the case won’t be “for disposition for another 90 days,” it said: “In all, stays of the mandate will regularly block the effectiveness of the appellate court’s judgment for seven months or more.”

The 9th Circuit’s stay in this case should be vacated “because that court’s standard for granting a stay of the mandate is much less stringent than required” by the SCOTUS precedents, said the application. The 9th Circuit’s legal standard “has no basis in law or logic,” it said. There’s no “context” in which a court’s judgment “is put on hold for a substantial period merely because the losing party has a non-frivolous argument,” it said.

As far as can be determined, the 9th Circuit “has never even attempted to explain the legal basis for its standard,” said the application. No 9th Circuit opinion, for example, addresses any of the SCOTUS precedent “governing stays of the mandate or explains why it is appropriate to so freely interrupt the ordinary judicial process of allowing the court of appeals’ ruling to take effect,” it said.

The 9th Circuit’s “radically more forgiving” legal standard shows up in the numbers, said the application. Since July 2022, the 9th Circuit has granted 51% of motions to stay the mandate, it said. The overwhelming majority of the stays that were denied “were presented by transparently frivolous applications -- generally submitted pro se, and frequently incomprehensible,” it said. Only the 6th Circuit, which applies “a similarly lax standard,” is more “generous,” granting 62% of the motions to stay since July 2022, it said.

SCOTUS previously has “summarily reversed” the entry of a stay where that reversal was appropriate, said the application. It should do the same here, “taking this unique opportunity to make clear” that the 9th Circuit’s standard for granting a stay of the mandate “is far too lenient,” it said. The 9th Circuit “almost always grants stays by summary orders,” it said. “It almost never explains the basis for granting such a motion, not even by citing the standard it is applying.”