Case: 13-5093

Document: 60

Page: 1

Filed: 07/18/2013

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit
______________________ CMS CONTRACT MANAGEMENT SERVICES, THE HOUSING AUTHORITY OF THE CITY OF BREMERTON, NATIONAL HOUSING COMPLIANCE, ASSISTED HOUSING SERVICES CORP., NORTH TAMPA HOUSING DEVELOPMENT CORP., CALIFORNIA AFFORDABLE HOUSING INITIATIVES, INC., SOUTHWEST HOUSING COMPLIANCE CORPORATION, AND NAVIGATE AFFORDABLE HOUSING PARTNERS (formerly known as Jefferson County Assisted Housing Corporation), Plaintiffs-Appellants, v. MASSACHUSETTS HOUSING FINANCE AGENCY, Plaintiff-Appellee, v. UNITED STATES, Defendant-Appellee. ______________________ 2013-5093 ______________________

Case: 13-5093

Document: 60

Page: 2

Filed: 07/18/2013

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CMS CONTRACT MANAGEMENT V. US

Appeal from the United States Court of Federal Claims in consolidated Nos. 12-CV-0852, 12-CV-0853, 12CV-0862, 12-CV-0864, and 12-CV-0869, Judge Thomas C. Wheeler. ______________________ ON MOTION ______________________ Before DYK, PROST, and O’MALLEY, Circuit Judges. PROST, Circuit Judge. ORDER CMS Contract Management Services, et al., (CMS) move for an immediate, temporary “stay” and “stay pending appeal.” The United States opposes. CMS also seeks to expedite the briefing and oral argument schedule for this appeal. CMS’s requests are better characterized as seeking to enjoin the United States Department of Housing and Urban Development (HUD) from awarding and performing new performance-based annual contribution contracts (PBACCs) pursuant to Section 8 of the Housing Act of 1937, 42 U.S.C. § 1437f, et seq. See Nken v. Holder, 556 U.S. 418, 429 (2009) (“A stay simply suspends judicial alteration of the status quo, while injunctive relief grants judicial intervention that has been withheld by lower courts.” (citation omitted) (internal quotation marks omitted)). Rule 8(a)(1)(C)(2) of the Federal Rules of Appellate Procedure authorizes this court to grant an injunction pending appeal. Similar to a motion to stay a judgment or injunction pending appeal, which is authorized by the same rule, our determination is governed by four factors, the first two of which are the most critical: (1) whether the movant has made a strong showing of likelihood of success on the merits; (2) whether the movant will be

Case: 13-5093

Document: 60

Page: 3

Filed: 07/18/2013

CMS CONTRACT MANAGEMENT V. US

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irreparably injured absent an injunction; (3) whether issuance of the injunction will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987). Without prejudicing the ultimate disposition of this case by a merits panel, we conclude based upon the papers submitted that CMS has not established the right to relief for an immediate, temporary injunction. We deem it the better course to defer consideration of the request for an injunction pending appeal to the merits panel assigned to hear the case. With regard to CMS’s motion to expedite, the court’s May 24, 2013 order accelerated the deadline for CMS to file its opening brief. CMS may, of course, choose to selfexpedite its reply brief. No extensions of time should be anticipated. This appeal will be placed on the next available oral argument calendar after the briefing is completed, which is the usual course, and thus no motion is necessary to obtain that relief. Accordingly, IT IS ORDERED THAT: (1) The motion for an immediate, temporary injunction is denied. (2) The motion for an injunction pending appeal is deferred to the merits panel assigned to this case. (3) Copies of this order shall be transmitted to the merits panel assigned to hear this case. (4) No extensions of time should be anticipated. (5) The motion to expedite is denied.

Case: 13-5093

Document: 60

Page: 4

Filed: 07/18/2013

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CMS CONTRACT MANAGEMENT V. US

FOR THE COURT /s/ Daniel E. O’Toole Daniel E. O’Toole Clerk

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