National Labor Relations Board v. Hank Westphal

This motion for a stay pending appeal presents the issue of whether a party appealing an order directing compliance with NLRB subpoenas is entitled to a stay of the order, as a matter of right under Fed. R.Civ.P. 62(d), upon the filing of a superse-deas bond.

After instituting unfair labor practice charges against Westphal, the NLRB served a subpoena ad testificandum and a subpoena duces tecum upon Westphal. Westphal refused to appear and give testimony and to produce the requested records. Accordingly, the NLRB applied for an order enforcing the subpoenas. On April 5, 1988, the district court held that the NLRB had shown sufficient cause to require Westphal to obey the subpoenas and ordered him to comply. Westphal moved for a stay under Fed.R.Civ.P. 62(d) pending appeal to this court, which the district court denied.

Rule 62(d) provides: “When an appeal is taken the appellant by giving a supersede-as bond may obtain a stay subject to the exceptions contained in subdivision (a) of this rule.” Rule 62(a) provides that, “Unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction or in a receivership action, or a judgment or order…