Page:Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration (5th Cir. Apr. 12, 2023).pdf/8

 On April 7, 2023, the district court entered an order staying the effective date of the 2000 Approval and each of the subsequent challenged actions. The district court stayed its own order for seven days to allow the defendants time to appeal.

FDA and Danco (“stay applicants” or “applicants”) ask us to stay the district court’s order pending appeal. Our power to grant a stay is inherent. See In re McKenzie, 180 U.S. 536, 551 (1901); Scripps-Howard Radio v. FCC, 316 U.S. 4, 10–14 (1942). It’s also statutory. See 8; 28 U.S.C. § 1651;  27.3; see also 16A,  § 3954 (5th ed. Apr. 2022 update).

But we grant stays “only in extraordinary circumstances.” Williams v. Zbaraz, 442 U.S. 1309, 1311 (1979) (Stevens, J., in chambers); see also Graves v. Barnes, 405 U.S. 1201, 1203 (1972) (Powell, J., in chambers) (same); Ruckelshaus v. Monsanto Co., 463 U.S. 1315, 1316 (1983) (Blackmun, J., in chambers) (same). This rule reflects the fact that “a stay is not a matter of right, even if irreparable injury might otherwise result.” ''Virginian Ry. Co. v. United States'', 272 U.S. 658, 672 (1926). Instead, a stay requires “an exercise of judicial discretion.” Ibid. A “decree creates a strong presumption of its own correctness,” which often counsels against a stay. Id. at 673.