ON APPLICATION TO VACATE STAY
MR. JUSTICE REHNQUIST, Circuit Justice.
Applicant Secretary of Transportation has moved to vacate a stay order entered by the United States Court of Appeals for the Ninth Circuit in a case presently pending before that court. The case arose in that court by reason of a petition for review of amendments to a motor vehicle safety standard promulgated by the Secretary's delegate on November 12, 1974, and scheduled to take effect on March 1, 1975. (MVSS-121; see 49 CFR § 571.121). The original petition for review in the Court of Appeals was filed by respondent PACCAR on January 3, 1975, and meanwhile two other challenges to the same standard filed in two other Courts of Appeals were transferred to the Court of Appeals for the Ninth Circuit and consolidated with PACCAR's challenge. PACCAR moved to stay the effective date of the regulation in the Court of Appeals for the Ninth Circuit, but its motion was denied on February 10, 1975. Oral argument on the
merits of the petition for review was set by the Court of Appeals for January 16, 1976. In December 1975, the Secretary's delegate gave notice that he proposed to modify the standard in question, and the Secretary moved in the Ninth Circuit to postpone oral argument until after the modification. The Court of Appeals advised counsel for the Secretary to appear at oral argument of January 16, 1976, as scheduled.
Following oral argument, the Court of Appeals entered the following order:
"IT IS HEREBY ORDERED that [the motor vehicle safety standard] is stayed for a period of sixty days, this stay to remain in effect thereafter pending further order of this court upon the application of any party."
It is incumbent upon me first to determine whether I have jurisdiction to grant the relief requested by the Secretary. This case does not come before me in the usual posture of a stay application, where a court of appeals has rendered a judgment disposing of a case before it and the losing litigant seeks a stay of the judgment of the court of appeals pending the filing of a petition for certiorari to review that judgment in this Court. There the question is whether four Justices are likely to vote to grant certiorari, and what assessment is to be made of the equities pertinent to the grant of such interim relief. Edelman v. Jordan, 414 U.S. 1301 (1973) (REHNQUIST, J., in chambers). Here the Court of Appeals has not finally disposed in the case; indeed; it has not ruled on the merits nor apparently rescheduled oral argument on the question presented by the petition for review of the safety standard.
Pursuant to Rules 50 and 51 of this Court I have authority as Circuit Justice to take any action which the full Court might take under 28 U.S.C. § 1651. But
even the full Court under § 1651 may issue writs only in aid of its jurisdiction. The Secretary contends that the Court of Appeals' stay order is the equivalent of a preliminary injunction which, if issued by a three-judge district court, would be reviewable here. Certainly the full Court, in the exercise of its normal appellate jurisdiction, has noted probable jurisdiction, heard argument, and written opinions in cases where the district court has issued only a preliminary injunction. See Brown v. Chote, 411 U.S. 452 (1973); Withrow v. Larkin, 421 U.S. 35 (1975). But in each of those cases the action of the District Court was made appealable to this Court by statute. 28 U.S.C. § 1253. There is no similar provision for appeal eo nomine from an interlocutory order of a court of appeals.
This Court has jurisdiction to review by certiorari any case in a court of appeals, 28 U.S.C. § 1254. Although the Secretary is not presently seeking certiorari from this Court in order to review the stay order of the Court of Appeals, if I have authority as Circuit Justice to vacate the stay, it must be on the ground that vacation of the stay is "in aid of this Court's jurisdiction" to review by certiorari a final disposition on the merits of respondents' petition to review and set aside the safety standard in question. See McClellan v. Carland, 217 U.S. 268, 279-280 (1910).
The closed opinions in point seem to be the in-chambers opinions of my Brother MARSHALL in Holtzman v. Schlesinger, 414 U.S. 1304 (1973), and of Mr. Justice Black in Meredith v. Fair, 83 S. Ct. 10, 9 L. Ed. 2d 43 (1962.) Both opinions considered on their merits motions to vacate interlocutory stays issued by a judge or panel of judges of a Court of Appeals; in Holtzman the motion was ...