80B stays


Here is something to file in the "learn something new every day" category. 

I always thought that the standard for obtaining a stay for an agency decision under 80B was the same as under 80C and the APA, or the general four-prong Ingraham test for an injunction.  Chief Justice Humphrey says no, it's a less demanding standard:   

Pike Industries, Inc. v. City of Westbrook, at al.

Why should the standard be different?  And what exactly are the contours of this test, aside from just not being as exacting as the Ingraham model?  While this decision uses Ingraham by analogy, it seems to leave the test to whatever the court thinks proper.  

Here are my thoughts.  On the why question, recollect that the SJC has taken the position that review of 80C administrative decisions are more deferential as to the law than the de novo standard of review applied under 80B.  A less demanding stay 80B standard could be viewed as a parallel to this dichotomy.  

On the parameters of this less deferential test, it seems to me that an important factor in this case was that the stay was to maintain the status quo.  Usually an 80B (or 80C) decision involves an application to do something new, so if the application is denied and that decision is appealed, nothing changes during the appeal.  If the application is granted, while an appeal doesn't automatically stay the administrative decision, the successful applicant proceeds at its own risk, and given financing and other practical considerations, will usually refrain from acting on the approval until the litigation is over.  Hence, normally there is no change in the status quo while the 80B action proceeds, and no need to try to get a stay.  

Here, however, given the circumstances, the absence of a stay would have changed the status quo and shut down a business.  Under general injunction principles, it's easier to get a stay under those circumstances; this decision may be a reflection of this principle. 

I don't know how this decision will translate into the more usual situation; or, given the practical considerations, whether this divergence in standards will make any difference, because, as noted, even in the absence of a formal stay, there's usually a practical stay in any event.  Still, I know that I will be more mindful of the possibility of a stay in the 80B context than I was before.