OCTOBER TERM, 1994
Opinion in Chambers
on application for stay
No. A-276. Decided September 21, 1995
An application to stay a District Court order restraining petitioner from publishing a magazine article disclosing documents filed under seal with that court is denied. Since it appears that the order was entered without notice to petitioner and was not supported by the findings required by Federal Rule of Civil Procedure 65(b), it can be assumed that the court would have dissolved the order had petitioner so moved. Had it refused to do so, the Court of Appeals would have had jurisdiction to address the restraint's merits. Instead, petitioner filed an expedited appeal, which the Court of Appeals dismissed on jurisdictional grounds. The stay application addresses the merits of the District Court's order, not the Court of Appeals' jurisdictional holding. Even if there is jurisdiction to pass on the order's merits, the wiser course is to give the District Court an opportunity to find the relevant facts—since there is a dispute over how petitioner acquired the documents—and allow both it and the Court of Appeals to consider the merits of the First Amendment issue before it is addressed here.
Justice Stevens, Circuit Justice.
On September 19, 1995, petitioner, the publisher of Business Week magazine, filed with me in my capacity as Circuit Justice for the Sixth Circuit a hastily prepared document entitled "Application to Stay Restraining Order Pending Certiorari." The caption of the document recites: "On Petition for a Writ of Certiorari to the Court of Appeals for the Sixth Circuit." The conclusion of the document asks me to stay the "outstanding prior restraint" against petitioner effected by an order entered by the United States District Court for the Southern District of Ohio, Western Division, on September 13. That order restrains petitioner from publishing an article containing "any disclosure of documents filed under seal, or the contents thereof, without the prior consent" of the District Court. Petitioner requests that a
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