In the
United States Court of Appeals
For the Seventh Circuit

Nos. 00-4110 & 01-1810

UNITED STATES OF AMERICA ex rel.
JANET CHANDLER, Ph.D.,

Plaintiff-Appellant, Cross-Appellee,

v.

COOK COUNTY, ILLINOIS,

Defendant-Appellee, Cross-Appellant.

Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 514--Robert W. Gettleman, Judge.

ON MOTION TO RECALL THE MANDATE
FEBRUARY 15, 2002/*



  RIPPLE, Circuit Judge (in chambers).
This matter is here on the motion of Cook
County, Illinois for a stay of this
court’s mandate pending the filing of a
petition for certiorari in the Supreme
Court of the United States. A response to
this motion has been filed by Dr.
Chandler.

  The standard for consideration of a
motion for stay of mandate pending
certiorari has been stated on several
occasions. In Books v. City of Elkhart,
239 F.3d 826 (7th Cir. 2001), I had
occasion to summarize the criteria as
follows:

When a party asks this court to stay its
mandate pending the filing for a petition
of a writ of certiorari, that party must
show that the petition will present a
substantial question and that there is
good cause for a stay. See Fed. R. App.
P. 41(d)(2)(A). The grant of a motion to
stay the mandate "is far from a foregone
conclusion." 16A Charles Alan Wright,
Arthur R. Miller & Edward H. Cooper,
Federal Practice and Procedure sec.
3987.1 (3d ed. 1999). Instead, the
inquiry must focus on whether the
applicant has a reasonable probability of
succeeding on the merits and whether the
applicant will suffer irreparable injury.
See Williams v. Chrans, 50 F.3d 1358,
1360 (7th Cir. 1995) (per curiam); United
States v. Holland, 1 F.3d 454 456 (7th
Cir. 1993) (Ripple, J., in chambers).

239 F.3d at 827-28. To demonstrate a
reasonable probability of success on the
merits, the applicant must show a reason
able probability that four Justices will
vote to grant certiorari and a reasonable
possibility that five Justices will vote
to reverse the judgment of this court.
See id. at 828. In this case, the
applicant has pointed out that there
exists a difference of opinion between
this court, the Court of Appeals for the
Fifth Circuit, see United States ex rel.
Garibaldi v. Orleans Parish School Board,
244 F.3d 486 (5th Cir. 2001), and the
Court of Appeals for the Third Circuit,
see United States ex rel. Dunleavy v.
County of Delaware, ___ F.3d ___, 2002 WL
111365 (3d Cir. 2002), on the issue of
whether a county can be a party defendant
in an action under the Federal False
Claims Act. See 31 U.S.C. sec.sec. 3729
et seq.

  In applying this standard, I must
perform the predictive function of
anticipating the course of decision in
the Supreme Court of the United States.
Although a conflict among the circuits is
one of the criteria employed by the
Supreme Court in determining whether to
grant certiorari, there are many cases in
which the Court decides to let a conflict
stand or at least to allow a good number
of circuits to decide the issue before
determining whether the conflict will
persist. However, another factor must
also be considered. The issue is
important to the municipalities across
the United States which participate in
federal grant programs and to the United
States in administering federal funds re
sponsibly. These two factors indicate
that the possibility of the Supreme
Court’s granting certiorari in this or
another case raising the issue is not
entirely insubstantial.

  When it comes to the question of whether
there is a possibility that five of the
Justices will reverse this court’s
judgment, the predictive function that I
am asked to fulfill becomes even more
difficult. In estimating this
possibility, I certainly must keep in
mind that, before this court rendered
judgment, the decision not only received
the unanimous approval of the panel but
also was submitted to the entire court.
No judge in regular active service
requested a vote for rehearing en banc.

  On the matter of irreparable injury, Dr.
Chandler has asserted only the prejudice
that comes with any delay in a judicial
proceeding. On the other hand, Cook
County can, and does, argue that its
immunity from punitive damages is, in the
context of this action, tantamount to an
immunity from trial and that it ought not
be put to the further expense of
preparing for trial until the question of
its immunity is decided definitively.
This consideration is, in my view, an
important one.

  Given the importance of the issue, the
conflict among the circuits that have
ruled on the matter and the injury that
the County could suffer if it is required
to prepare for trial before the Supreme
Court takes action, I have decided to
grant the motion. Accordingly, the
mandate of this court is stayed until the
expiration of the time allowed for the
filing of a petition for certiorari. If a
petition is filed within that time, this
stay shall remain in force until the
conclusion of all proceedings before the
Supreme Court of the United States.

IT IS SO ORDERED.

FOOTNOTE

/* This opinion was released initially in typescript
form.
