NorCal Tea Party Patriots v. Internal Revenue Service et al

Filing 187

ORDER regarding 185 Motion to Stay. The Court will extend the stay for a period of seven days from the date of this Order to enable the Government to file a petition for mandamus with the Sixth Circuit Court of Appeals. However, the stay will be automatically extended for an additional sixty days if the Government timely files the petition for mandamus within seven days. The Government may move the Court for further extension of the stay for good cause. Additionally, the stay will be automatically dissolved within seven days of the resolution of the appellate proceeding.. Signed by Judge Susan J. Dlott. (wam)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
NorCal Tea Party Patriots, et al,
Plaintiffs,
v.
The Internal Revenue Service, et al.,
Defendants.

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Case No. 1:13-cv-341
Judge Susan J. Dlott
Order Extending Stay

This matter is before the Court on the United States’ Motion to Extend Stay of Execution
of Order Compelling Discovery, as Modified (Doc. 185). The Government has determined to
seek immediate appellate review of two related discovery Orders (Docs. 147 and 183). The
Government states its intention to file a petition for writ of mandamus with the Sixth Circuit
Court of Appeals on or before July 30, 2015. It seeks the Court to stay the execution of the
discovery Orders until fourteen days after the final resolution of the appellate proceeding.
The factors regulating the issuance of a stay are the same factors traditionally regulating
the issuance of a preliminary injunction. Mich. Coal. of Radioactive Material Users, Inc. v.
Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). The factors are as follows: “(1) whether the stay
applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the
applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the proceeding; and (4) where the public
interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987); see also Profs. Direct Ins. Co. v.
Wiles, Boyle, Burkholder & Bringardner Co., LPA, No. 2:06-cv-240, 2008 WL 5378362, at *1
(S.D. Ohio Dec. 24, 2008) (applying Hilton to a request for stay of production of discovery).
“The probability of success that must be demonstrated is inversely proportional to the amount of
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irreparable injury plaintiffs will suffer absent the stay.” Mich. Coal. of Radioactive Material
Users, 945 F.2d at 153. The Court finds that a stay is warranted here. The Government has not
made a strong showing of likelihood of success on appeal, but it will suffer irreparable harm and
the third parties whose tax return information is produced will suffer irreparable harm if the
Government produces third party tax return information which the Sixth Circuit later determines
should have remained confidential.
The Court urges the Government to proceed in an expeditious fashion. The parties have
been litigating this discovery issue since early March 2015. The Court issued the initial Order
Compelling Discovery (Doc. 147) on April 1, 2015. The Government then sought a
reconsideration of the Order Compelling Discovery and a stay of the Order Compelling
Discovery while it determined whether to seek appellate review. (Doc. 151.) The Court granted
an initial thirty-day stay on June 16, 2015. (Doc. 183.) The Government already has had ample
time to prepare a petition for writ of mandamus. It does not require an additional two weeks.
Accordingly, the Court will extend the stay for a period of seven days from the date of
this Order to enable the Government to file a petition for mandamus with the Sixth Circuit Court
of Appeals. However, the stay will be automatically extended for an additional sixty days if the
Government timely files the petition for mandamus within seven days. The Government may
move the Court for further extension of the stay for good cause. Additionally, the stay will be
automatically dissolved within seven days of the resolution of the appellate proceeding.
IT IS SO ORDERED.

S/Susan J. Dlott______________
Judge Susan J. Dlott
United States District Court

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