Sample Motion to Stay Pending Appeal: Four-Factor Standard and Bond

A motion to stay pending appeal is the filing that stops the winning party from enforcing a federal judgment while you take it up to the court of appeals. You file it in the district court that entered the judgment, you argue a four-factor legal test the Supreme Court set out in Nken v. Holder, and in most money cases you back it with a supersedeas bond or other court-approved security. You have a narrow window to get this done: Federal Rule of Civil Procedure 62(a) gives you only 30 days of automatic protection after the judgment is entered before collection can begin.¹

The 30-Day Clock You Are Working Against

Rule 62(a) stays enforcement automatically for 30 days after a judgment is entered, unless the court orders otherwise.¹ The clock starts the moment the judgment hits the docket, not when you file your notice of appeal. During those 30 days the judgment creditor cannot garnish your wages, levy your bank accounts, or seize property.

Two things to know up front. First, filing a notice of appeal does not stay anything on its own. That misconception costs people their assets. Second, injunctions, receivership orders, and patent infringement orders directing an accounting can be enforced immediately after entry, with no automatic 30-day cushion, unless you obtain a separate stay.¹ If your judgment involves any of those, treat the motion as something to file within days of entry, not weeks.

After the 30 days, Rule 62(b) lets you continue the stay by posting a bond or other security the court approves. The stay takes effect when the court signs off on the security.¹ The motion and the bond work as a pair: the motion asks for the stay, and the bond gives the court a reason to grant it.

The Four-Factor Standard the Court Will Apply

Courts decide stay requests using the four-factor test the Supreme Court set out in Hilton v. Braunskill and reaffirmed in Nken v. Holder. You carry the burden, and a stay is never automatic even if irreparable injury would otherwise result.² Your argument section needs to walk the court through each factor, in order, applied to your record.

The first factor is likelihood of success on the merits. You must make a strong showing that the appeal raises substantial legal questions and that reversal or significant modification is likely. A chance “better than negligible” is not enough.

The second is irreparable harm absent a stay. You must show injury that cannot be undone or adequately compensated with money if enforcement proceeds while the appeal is pending. A mere “possibility” of irreparable injury falls short.

The third is the balance of harms. You must show that the harm to you without a stay outweighs the harm the stay would impose on the prevailing party. If the other side faces serious financial risk from delay, explain why your situation is worse and why the bond protects them.

The fourth is the public interest. You must argue that a stay serves the broader public good, or at least does not harm it. This factor carries real weight in cases involving regulatory compliance or constitutional questions, and little weight in a pure private dispute.

The Supreme Court has emphasized that the first two factors matter most. A court cannot excuse a weak showing on likelihood of success because irreparable harm is obvious, and vice versa. Both must be independently satisfied before the court reaches the balance-of-harms and public-interest inquiry.² Several circuits apply the factors on a sliding scale, where a very strong merits showing can offset a somewhat weaker irreparable-harm argument, but you still need to clear a minimum threshold on each.

What the Motion Must Contain

A motion to stay is a formal court filing, and each section does specific work. Skip a component and the court has a reason to deny without reaching the merits.

Caption and Title

The caption identifies the court, case number, parties, and nature of the filing. Title the motion precisely, such as “Motion to Stay Enforcement of Judgment Pending Appeal” or “Motion for Stay of Execution Pending Appeal.” If you are also asking for bond relief, say so in the title.

Introduction and Statement of Facts

Open with a short paragraph identifying who you are, what judgment was entered, and what you want. Follow with a concise summary of the judgment: date entered, what it requires (dollar amount, injunction, property transfer), and the fact that you have filed or intend to file a notice of appeal. Keep it tight. The judge knows the case.

Argument on the Four Factors

This is the core of the motion. Give each of the four factors its own subsection with a clear subheading. Open each subsection with the legal standard, then apply it to your specific facts with citations to the trial record and controlling appellate authority. Vague assertions accomplish nothing. Identify the exact harm, explain why money cannot fix it, and point to record evidence.

Bond or Security Discussion

Address the bond directly, even if you intend to post the full amount. State the proposed amount and show how you calculated it. If you want a reduced bond or alternative security, include financial documentation of your assets and liabilities, your efforts to obtain a standard bond, and your proposed alternative. Courts respond to concrete financial disclosures, not general claims of hardship.

Prayer for Relief

State exactly what you want the court to do. Be specific enough that the judge can draft the order from your paragraph: identify the judgment by date, the monetary amount, any injunction by its terms, the appellate court and case number where the appeal is pending, and the proposed bond amount.

Certificate of Service

Every motion needs a certificate confirming you served a copy on opposing counsel or the opposing party. Filing without it can get your motion stricken or delayed.

A Fill-In Framework You Can Adapt

The scaffolding below shows how the pieces fit together. Replace the bracketed placeholders with your case information, and expand each argument subsection with your record citations and authority.

IN THE UNITED STATES DISTRICT COURT
FOR THE [DISTRICT] OF [STATE]

[PLAINTIFF NAME], Plaintiff,
v.
[DEFENDANT NAME], Defendant.
Case No. [XX-XXXX]

DEFENDANT’S MOTION TO STAY ENFORCEMENT OF JUDGMENT PENDING APPEAL

Defendant [Name], through undersigned counsel, respectfully moves this Court pursuant to Federal Rule of Civil Procedure 62(b) for an order staying enforcement of the judgment entered on [date] pending appeal to the [Circuit] Court of Appeals. In support, Defendant states the following:

I. Statement of Facts

On [date], this Court entered judgment against Defendant in the amount of $[amount] and issued a permanent injunction requiring [describe injunction]. Defendant filed a Notice of Appeal on [date]. [One or two sentences identifying the key legal errors you intend to raise on appeal.]

II. Argument

A. Defendant Is Likely to Succeed on the Merits of the Appeal. [Identify the specific legal errors in the trial court’s decision. Cite the record and controlling appellate authority. Explain why the legal question is substantial and the outcome is likely to change on review.]

B. Defendant Will Suffer Irreparable Harm Absent a Stay. [Describe the specific, concrete harm that will occur if enforcement proceeds. Explain why it cannot be undone or compensated with money after a successful appeal. Cite record evidence.]

C. The Balance of Harms Favors a Stay. [Compare the harm to you without a stay against the harm to the opposing party with one. Address delay concerns and explain why the bond adequately protects their interests.]

D. The Public Interest Supports a Stay. [Explain how a stay serves the public interest, or at minimum does not harm it.]

III. Proposed Security

Defendant proposes to post a supersedeas bond in the amount of $[amount], representing [percentage] of the judgment to cover the award, anticipated post-judgment interest, and costs. [Alternatively, describe the proposed alternative security and why it is appropriate. If seeking a reduction or waiver, attach financial disclosures and describe your bond procurement efforts.]

IV. Prayer for Relief

Defendant respectfully requests that this Court enter an order: (1) staying enforcement of the $[amount] monetary judgment and the permanent injunction entered on [date], pending resolution of the appeal in [appellate court and case number]; and (2) approving the supersedeas bond in the amount of $[amount] [or approving the proposed alternative security].

Respectfully submitted,
[Attorney Name, Bar Number]
[Firm Name, Address, Phone, Email]

Certificate of Service

I hereby certify that on [date], a true and correct copy of the foregoing Motion was served upon [opposing counsel name and firm] via [method of service, e.g., the Court’s CM/ECF electronic filing system].

Where to File and What Happens If the Trial Court Says No

Federal Rule of Appellate Procedure 8(a)(1) requires that you file the motion in the district court that entered the judgment first.³ The trial judge knows the case, the record, and is positioned to set an appropriate bond. File through the court’s electronic system (CM/ECF in most federal courts) and pay any required filing fees at submission.

File as soon as possible after the judgment is entered. Well within the 30-day automatic window is the right posture, so the court has time to rule before enforcement begins. The notice of appeal transfers jurisdiction over the merits to the appellate court, but the trial court keeps authority over enforcement and stay requests.

If the district court denies the stay or sets a bond amount you believe is unreasonable, you can go to the court of appeals. Under Rule 8(a)(2), an appellate motion must either show that applying to the district court first would have been impracticable, or state that you did apply and the request was denied, including any reasons the district court gave. The appellate motion must also include the reasons for the relief requested, supporting affidavits, and relevant portions of the record.³

The Supersedeas Bond and Alternatives

On a money judgment, courts almost always require a supersedeas bond or equivalent security before granting a stay. The bond protects the winning party: if your appeal fails, it covers the judgment, accumulated interest, and costs so the other side is not chasing assets that disappeared during the appeal.

Bond amounts are typically set at the full judgment plus a cushion for interest and costs. Figures in the range of 110 to 150 percent of the judgment are common, depending on the award size and local rules. Some courts use a flat percentage; others calculate projected post-judgment interest and add it to principal. Propose a specific amount in your motion and show how you got there.

A traditional surety bond is not the only option. Courts have discretion to accept cash deposited in an interest-bearing escrow account, an irrevocable letter of credit, or combinations of these. Annual premiums on supersedeas bonds generally run one to three percent of the bond amount, so on a multimillion-dollar judgment the cost is substantial, and alternative security can reduce it.

Courts can also reduce or waive the bond when the full amount is impossible to obtain. If you can show a genuine inability to secure a bond despite good-faith efforts, many courts will consider a reduced amount rather than deny a stay altogether. You might also show liquid assets or real property sufficient to satisfy the judgment, making a bond unnecessary as a practical matter. Any request for waiver or reduction needs specific financial evidence, not a general claim of hardship.

Emergency and Administrative Stays

Sometimes normal briefing is too slow. If enforcement is imminent and your motion has not been ruled on, you may need an emergency or administrative stay. An administrative stay is a short-term freeze that preserves the status quo while the court reads the full motion. It is not a decision on the merits of your stay request.

Emergency procedures vary by circuit but share common features. Most circuits require a phone call to the clerk’s office and to opposing counsel before filing, notifying both that the filing is coming. Mark the filing “Emergency Motion” on the cover page. Include a cover letter or separate section explaining why normal timelines are inadequate, what irreparable harm will occur without immediate relief, and the date by which you need a ruling. Attach copies of any stay requests already filed in the lower court, along with the ruling or the reasons it was impracticable to apply there first.

Courts take a dim view of emergency motions filed for problems that could have been anticipated weeks earlier. If you knew the 30-day automatic stay was running and waited until day 29, expect skepticism. Genuine emergencies, such as scheduled deportations or imminent property transfers, get the most receptive treatment.

What Happens If You Do Not Secure a Stay

Once the automatic 30-day window closes without court-approved security in place, the judgment creditor can begin full enforcement. That includes writs of execution to seize assets, levies on bank accounts, wage garnishment, and liens on real property, all proceeding regardless of whether your appeal is pending.¹

The deeper risk is mootness. If the judgment is satisfied or the ordered action completed while the appeal is pending, the appellate court may conclude there is nothing left to review. In bankruptcy the rule is explicit: under 11 U.S.C. § 363(m), if a court-approved sale closes without a stay in place, an appeal of that sale order is statutorily moot and will be dismissed regardless of the merits. Outside bankruptcy, courts still have limited ability to unscramble money already paid, property that has changed hands, or injunctions already complied with.

The motion to stay is not a formality to file whenever you get to it. It is the most time-sensitive filing in the early days of your appeal, and the quality of its drafting often decides whether the appeal is worth taking at all.

1
Legal Information Institute. Federal Rules of Civil Procedure Rule 62 – Stay of Proceedings to Enforce a Judgment
2
Justia U.S. Supreme Court Center. Nken v Holder, 556 US 418 (2009)
3
Legal Information Institute. Federal Rules of Appellate Procedure Rule 8 – Stay or Injunction Pending Appeal