                                In the
      United States Court of Appeals
                      For the Seventh Circuit

                          _________________

No. 08-3557

ROBERT MCBRIDE,

                                                     Plaintiff-Appellee,

                                   v.

CSX TRANSPORTATION, INC.,

                                                  Defendant-Appellant.



           Appeal from the United States District Court
                 for the Southern District of Illinois.
          No. 3:06-cv-01017-JPG-CJP--J. Phil Gilbert, Judge.



              ON MOTION TO STAY THE MANDATE

                            JUNE 24, 2010*




      *
          This opinion is being released in typescript form.
No. 08-3557                                                        Page 2

        RIPPLE, Circuit Judge (in chambers). CSX Transportation has
filed a motion to stay the mandate pending the filing and disposition
of a petition for writ of certiorari. For the reasons set forth in this
opinion, the motion must be denied.

        On March 16, 2010, this court affirmed the judgment of the
district court. See McBride v. CSX Transp., Inc., 598 F.3d 388 (7th Cir.
2010). On June 3, we denied CSX’s petition for rehearing en banc. On
June 8, CSX filed this motion for a stay of this court’s mandate.
Therefore, the issuance of the mandate, originally scheduled to issue
on June 10, has been postponed temporarily while we considered the
motion and the response of Mr. McBride.

        The standard governing the issuance of such a stay is well-
established. We may stay our mandate pending the filing of a petition
for a writ of certiorari if the applicant demonstrates “that the certiorari
petition would present a substantial question and that there is good
cause for a stay.” Fed. R. App. P. 41(d)(2)(A). The inquiry
contemplated by this rule focuses on “whether the applicant has a
reasonable probability of succeeding on the merits and whether the
applicant will suffer irreparable injury.” United States ex rel. Chandler
v. Cook County, 282 F.3d 448, 450 (7th Cir. 2002) (Ripple, J., in
chambers). To demonstrate a reasonable probability of success on the
merits, the applicant must show a reasonable 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. Id. See also
Indiana Prot. & Advocacy Servs. v. Indiana Family & Soc. Servs. Admin.,
2010 WL 2115386, *1 (7th Cir. May 26, 2010) (Hamilton, J., in
chambers) (quoting California v. Am. Stores Co., 492 U.S. 1301, 1306-07
(1989) (O'Connor, J., in chambers)).

       CSX argues that it meets each of the factors necessary for this
court to stay its mandate. It first argues that there is a reasonable
probability that four Justices will vote to grant certiorari in this case.
No. 08-3557                                                      Page 3

CSX points to Supreme Court Rule 10(a), which says that the Court
will consider granting certiorari when “a United States court of
appeals . . . has decided an important federal question in a way that
conflicts with a decision by a state court of last resort.”

        CSX has not carried its burden of establishing the requisite
probability of success on the merits. Because several state courts have
taken a different view, it has established that its case falls within the
general category of cases identified by the Supreme Court’s rule as
deserving consideration for a grant of a writ of certiorari. It has not
demonstrated, however, the requisite probability that certiorari will
be granted or the requisite possibility that the judgment of this court
will be reversed if certiorari should be granted. As the opinion of this
court notes, our decision is in conformity with the law of this and
every other federal circuit that has addressed the issue. Only a few
state courts have adopted a contrary position. Under these
circumstances, absent a clear indication from the Supreme Court that
it is desires to re-debate an issue it so recently has confronted, our
proper course is to take the law as settled and require a party
maintaining that the Supreme Court wishes to reconsider the matter
to seek redress from the Supreme Court both on the merits of its
contention and with respect to a stay of our mandate.

       CSX also submits that it will suffer irreparable harm if it is
required to pay the judgment pending Supreme Court review
because, if the Supreme Court reverses, it is unlikely to be able to
recover the money from Mr. McBride. It relies on two Supreme Court
chambers opinions: Ledbetter v. Baldwin, 479 U.S. 1309, 1310 (1986)
(Powell, J., in chambers) and Heckler v. Turner, 468 U.S. 1305, 1308
(1984) (Rehnquist, J., in chambers). In these cases, the authoring
Justices found irreparable injury because it was unlikely that the
applicant for the stay would be able to recover funds if the judgment
were reversed. Notably, both cases involved the distribution of AFDC
payments by the government to a large number of individuals who
No. 08-3557                                                      Page 4

were unlikely to be able to repay any erroneous payments if the
judgment were reversed. By contrast, here CSX does not explain, with
any specificity, why it is unlikely that Mr. McBride will be able to
repay the judgment if it is reversed.

       In sum, it cannot be said, on the basis of the information
presented in this motion, that CSX has met the significant burden
placed on a litigant seeking a stay pending the filing of a petition for
a writ of certiorari. Accordingly, the motion is denied.

                                                   MOTION DENIED
