Stay of Enforcement Request - Delaware

STAY OF ENFORCEMENT REQUEST — DELAWARE

TABLE OF CONTENTS

1. Stay Request Cover Letter
2. Formal Motion for Stay of Enforcement
3. Statement of Facts
4. Legal Standard for Stay
5. Grounds Analysis — Substantial Issues and Irreparable Harm
6. Bond and Security Provisions
7. Emergency Stay Procedures
8. Opposition Response Template
9. Proposed Order Granting Stay
10. Appeal of Stay Denial
11. Document Checklist
12. Practice Tips
13. Sources and References

1. STAY REQUEST COVER LETTER

[__/__/____]

[________________________________]
[Title / Position]
[Agency Name / Superior Court]
[________________________________]
[________________________________]
[City, State, ZIP]

Via: ☐ Hand Delivery ☐ Certified Mail ☐ Electronic Filing ☐ Facsimile

Re: Application for Stay of Enforcement Pending Judicial Review
Docket/Case No.: [________________________________]
Agency Order/Decision Dated: [__/__/____]
Petitioner: [________________________________]

Dear [________________________________]:

Enclosed please find Petitioner's Application for Stay of Enforcement of the above-referenced agency [decision / regulation], filed pursuant to 29 Del. C. § 10144.

Petitioner respectfully requests expedited consideration of this application due to [________________________________].

This application demonstrates that the issues and facts presented for review are substantial and that a stay is required to prevent irreparable harm to Petitioner, consistent with the statutory standard.

Please contact the undersigned at [________________________________] with any questions regarding this filing.

Respectfully submitted,

[________________________________]
Attorney for Petitioner
Delaware Bar No.: [________________________________]
[________________________________]
[________________________________]
[________________________________]
Telephone: [________________________________]
Email: [________________________________]

2. FORMAL MOTION FOR STAY OF ENFORCEMENT

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR [________________________________] COUNTY

MOTION FOR STAY OF ENFORCEMENT

Petitioner [________________________________] ("Petitioner"), by and through [undersigned counsel / pro se], respectfully moves this Court for an order staying enforcement of the [Decision / Order / Regulation] of [Agency Name] dated [__/__/____] ("Agency Action"), pursuant to 29 Del. C. § 10144, pending judicial review.

In support of this Motion, Petitioner states as follows:

I. NATURE OF THE PROCEEDING

1. This is an action for judicial review of [☐ a contested case decision under 29 Del. C. § 10142 / ☐ an agency regulation under 29 Del. C. § 10141 / ☐ other agency action under [________________________________]].

2. Petitioner filed a petition for judicial review on [__/__/____] in accordance with the statutory requirements.

3. The agency action at issue was [☐ a final order in a contested case / ☐ a regulation / ☐ an enforcement action] issued by [________________________________] on [__/__/____].

II. JURISDICTIONAL STATEMENT

4. This Court has jurisdiction over this matter under 29 Del. C. § 10142 (contested cases) or 29 Del. C. § 10141 (regulations).

5. Under 29 Del. C. § 10144, the Court may stay enforcement of the agency action upon a finding at a preliminary hearing that:
   - The issues and facts presented for review are substantial; and
   - The stay is required to prevent irreparable harm.

6. Petitioner requests this Court to schedule a preliminary hearing on this motion and to grant the requested stay.

3. STATEMENT OF FACTS

A. Background

7. Petitioner is [________________________________] [describe party — individual, business entity, licensee, permit holder, etc.].

8. [________________________________]
   [Describe the history of the administrative proceeding, including the nature of the agency action, key dates, hearings, and procedural steps.]

B. The Agency Action

9. On [__/__/____], the [Agency Name] took the following action:

☐ Issued a final order in a contested case that [________________________________]
☐ Adopted or amended a regulation that [________________________________]
☐ Imposed a fine or penalty of $[________________________________]
☐ Revoked or suspended Petitioner's [license / permit / certification] No. [________________________________]
☐ Issued a cease-and-desist order requiring [________________________________]
☐ Denied Petitioner's application for [________________________________]
☐ Other: [________________________________]

10. The Agency Action is scheduled to take effect on [__/__/____].

C. The Petition for Review

11. On [__/__/____], Petitioner filed a petition for judicial review with this Court seeking:

☐ Reversal of the agency decision
☐ Remand for further proceedings
☐ Declaratory relief regarding the regulation
☐ Other: [________________________________]

D. Current Status and Urgency

12. Without a stay, the Agency Action will [________________________________] on [__/__/____].

13. [________________________________]
    [Describe circumstances creating urgency.]

4. LEGAL STANDARD FOR STAY

A. Statutory Framework

Delaware's Administrative Procedures Act provides for stays of enforcement at 29 Del. C. § 10144:

"When an action is brought in the Court for review of an agency regulation or decision, enforcement of such regulation or decision by the agency may be stayed by the Court only if it finds, upon a preliminary hearing, that the issues and facts presented for review are substantial and the stay is required to prevent irreparable harm."

B. Two-Part Test Under Section 10144

Delaware law establishes a two-prong test for obtaining a stay of enforcement:

Prong 1: Substantial Issues and Facts
The petitioner must demonstrate that the issues and facts presented for judicial review are substantial — i.e., that the case raises serious questions worthy of review, not merely frivolous or colorable claims.

Prong 2: Irreparable Harm
The petitioner must demonstrate that the stay is required to prevent irreparable harm — harm that is immediate, concrete, and cannot be adequately remedied through ordinary legal relief.

C. Preliminary Hearing Requirement

Under Section 10144, the Court must hold a preliminary hearing before granting a stay. This hearing provides both parties the opportunity to present evidence and argument on the stay factors.

D. Scope of Stay Authority

☐ The stay applies to enforcement of agency regulations (29 Del. C. § 10141)
☐ The stay applies to enforcement of agency decisions in contested cases (29 Del. C. § 10142)
☐ The Court has discretion to craft the terms and conditions of any stay

E. Burden of Proof

The petitioner bears the burden of satisfying both prongs of the Section 10144 test. The standard reflects the heightened threshold required under Delaware law for judicial interference with agency enforcement authority.

5. GROUNDS ANALYSIS — SUBSTANTIAL ISSUES AND IRREPARABLE HARM

Prong 1: The Issues and Facts Are Substantial

14. The issues presented for review are substantial because:

A. Errors of Law

☐ The agency exceeded its statutory authority under [________________________________]
☐ The agency misinterpreted or misapplied the governing statute
☐ The decision violated constitutional provisions, specifically [________________________________]
☐ The agency applied an incorrect legal standard
☐ The decision is inconsistent with prior agency precedent

15. Specifically, the legal errors include:

a. [________________________________]
b. [________________________________]
c. [________________________________]

B. Errors of Fact

☐ The decision is not supported by substantial evidence in the record
☐ The agency ignored material evidence that [________________________________]
☐ The agency relied upon evidence that was [incompetent / unreliable / improperly admitted]
☐ Key factual findings are contradicted by the record

16. The factual issues are substantial because:

[________________________________]
[________________________________]

C. Procedural Defects

☐ The agency failed to provide adequate notice under 29 Del. C. § 10122
☐ The hearing did not comply with contested case requirements under 29 Del. C. § 10125
☐ The agency failed to follow its own regulations
☐ Due process violations, specifically: [________________________________]

Prong 2: Irreparable Harm

17. Without a stay, Petitioner will suffer irreparable harm because:

☐ Loss of [license / permit / certification] will result in immediate cessation of business operations, affecting [____] employees and $[________________________________] in annual revenue
☐ Financial losses that cannot be recovered from the State under sovereign immunity principles
☐ Reputational damage that is permanent and not compensable by monetary relief
☐ Loss of established business relationships, goodwill, and competitive position
☐ Loss of employment or professional livelihood
☐ Constitutional rights will be violated during the pendency of review
☐ Physical harm or health consequences to Petitioner or [________________________________]
☐ Other: [________________________________]

18. The irreparable nature of this harm is demonstrated by:

[________________________________]
[________________________________]
[________________________________]

19. This harm cannot be remedied through ordinary legal channels because:

☐ Sovereign immunity bars damages claims against the State
☐ The harm is non-monetary in nature
☐ Once the harm occurs, it cannot be undone
☐ The harm will render the appeal moot
☐ [________________________________]

20. Supporting evidence of irreparable harm:

☐ Declaration of [________________________________] (Exhibit [____])
☐ Financial statements showing [________________________________] (Exhibit [____])
☐ Expert report of [________________________________] (Exhibit [____])
☐ Other documentation: [________________________________] (Exhibit [____])

6. BOND AND SECURITY PROVISIONS

A. Court's Discretion to Impose Terms

While 29 Del. C. § 10144 does not specifically mandate a bond, the Court has discretion to grant a stay on appropriate terms, which may include the posting of security.

B. Petitioner's Position on Bond

☐ Petitioner is willing to post a bond in the amount of $[________________________________]
☐ Petitioner proposes alternative security: [________________________________]
☐ Petitioner requests that no bond be required because: [________________________________]
☐ Petitioner requests a reduced bond because: [________________________________]

C. Proposed Bond or Security Terms

D. Supersedeas Bond Considerations

In cases involving monetary penalties or fines:

☐ Petitioner proposes a supersedeas bond in the amount of $[________________________________] (amount of judgment plus estimated interest and costs)
☐ Petitioner requests the bond amount be set at less than the full judgment amount because: [________________________________]
☐ Delaware Superior Court Civil Rule 62 governs supersedeas bond requirements for appeals

E. Proposed Conditions of Stay

Petitioner proposes the following conditions:

☐ Petitioner will maintain current [insurance / licensure / certification] requirements
☐ Petitioner will comply with [________________________________]
☐ Petitioner will submit periodic status reports to the agency
☐ Petitioner will refrain from [________________________________]
☐ Petitioner will permit agency monitoring or inspection
☐ Other conditions: [________________________________]

7. EMERGENCY STAY PROCEDURES

A. Application for Emergency / Temporary Stay

When the agency action takes effect before the Court can hold the preliminary hearing required by Section 10144, Petitioner may seek emergency temporary relief.

Emergency Stay Request

☐ Petitioner seeks an emergency temporary stay pending the Section 10144 preliminary hearing
☐ The agency action takes effect on [__/__/____]
☐ The earliest available hearing date is [__/__/____]
☐ Without emergency relief, Petitioner will suffer: [________________________________]

B. Grounds for Emergency Relief

21. Emergency relief is warranted because:

☐ The enforcement date is imminent: [__/__/____]
☐ The preliminary hearing cannot be scheduled before enforcement commences
☐ The harm from enforcement is immediate and irreversible
☐ Normal scheduling would render the stay request moot
☐ Petitioner discovered the enforcement action on [__/__/____] and has acted with diligence

C. Motion for Temporary Restraining Order

If a stay under Section 10144 is unavailable on an emergency basis, Petitioner may seek a temporary restraining order under Del. Super. Ct. Civ. R. 65:

☐ Petitioner seeks a TRO pursuant to Rule 65(b)
☐ The TRO is necessary to preserve the status quo pending the preliminary hearing
☐ Petitioner's attorney certifies the following efforts to provide notice to the agency: [________________________________]

D. Proposed Emergency Procedure

Petitioner requests:

☐ An immediate temporary stay pending the Section 10144 preliminary hearing
☐ Expedited scheduling of the preliminary hearing
☐ Telephonic or video conference hearing
☐ Consideration on the papers without oral argument
☐ Shortened response time for the agency

E. Notice to Opposing Party

☐ The agency has been notified of this emergency application on [__/__/____] at [____] [a.m./p.m.]
☐ Contact person notified: [________________________________]
☐ Method of notice: ☐ Telephone ☐ Email ☐ Fax ☐ Hand Delivery

8. OPPOSITION RESPONSE TEMPLATE

AGENCY'S OPPOSITION TO MOTION FOR STAY

The [Agency Name] respectfully opposes Petitioner's Motion for Stay of Enforcement and states:

I. The Issues and Facts Are Not Substantial

22. The agency action was:
    ☐ Supported by substantial evidence in the record
    ☐ Within the agency's statutory authority under [________________________________]
    ☐ Made in accordance with proper administrative procedure
    ☐ Consistent with prior agency decisions and established policy
    ☐ Properly based upon the applicable legal standard

23. Petitioner's claims do not raise substantial issues because:
    ☐ The arguments are conclusory and unsupported
    ☐ The legal theories have been rejected by Delaware courts in [________________________________]
    ☐ The factual contentions are contradicted by the record
    ☐ [________________________________]

II. Petitioner Has Not Demonstrated Irreparable Harm

24. The alleged harm is not irreparable because:
    ☐ The harm is primarily financial and compensable
    ☐ The harm is speculative and not imminent
    ☐ Petitioner caused or contributed to the circumstances requiring enforcement
    ☐ Petitioner delayed in seeking relief, undermining the claim of irreparable harm
    ☐ [________________________________]

III. The Public Interest Requires Enforcement

25. The public interest requires immediate enforcement because:
    ☐ Public health and safety concerns: [________________________________]
    ☐ Regulatory compliance objectives: [________________________________]
    ☐ Deterrence of future violations: [________________________________]
    ☐ Protection of third parties: [________________________________]

IV. Conditions if Stay is Granted

26. If the Court grants the stay, the Agency requests:
    ☐ Bond in the amount of $[________________________________]
    ☐ Conditions: [________________________________]
    ☐ Time limitation: Stay to expire no later than [__/__/____]
    ☐ Expedited briefing schedule on the merits

9. PROPOSED ORDER GRANTING STAY

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR [________________________________] COUNTY

ORDER ON MOTION FOR STAY OF ENFORCEMENT

(Pursuant to 29 Del. C. § 10144)

This matter having come before the Court on Petitioner's Motion for Stay of Enforcement, and the Court having conducted a preliminary hearing on [__/__/____], and having considered the submissions of the parties and the applicable law:

THE COURT FINDS that:

☐ The issues and facts presented for review are substantial in that [________________________________].
☐ A stay is required to prevent irreparable harm to Petitioner in that [________________________________].

IT IS HEREBY ORDERED that:

☐ Petitioner's Motion for Stay is GRANTED on the following terms:

1. Enforcement of the [Decision / Order / Regulation] dated [__/__/____] is stayed pending [final disposition of the judicial review / further order of this Court / the following date: __/__/____].

2. ☐ Petitioner shall post a bond or security in the amount of $[________________________________] within [____] days of this Order.
   ☐ No bond or security is required.

3. The following conditions shall apply during the period of the stay:
   a. [________________________________]
   b. [________________________________]
   c. [________________________________]

4. ☐ The agency may move to dissolve this stay upon a showing of changed circumstances or new evidence of harm to the public.

5. ☐ The parties shall adhere to the following expedited briefing schedule: [________________________________].

☐ Petitioner's Motion for Stay is DENIED because:
☐ The issues and facts are not substantial
☐ Petitioner has not demonstrated that a stay is required to prevent irreparable harm
☐ Other: [________________________________]

SO ORDERED this [____] day of [________________], [________].

_________________________________
Judge, Superior Court

10. APPEAL OF STAY DENIAL

A. Review of Stay Denial

If the Superior Court denies the stay application after the preliminary hearing:

☐ File a motion for reargument under Del. Super. Ct. Civ. R. 59(e)
☐ Seek interlocutory appellate review by the Delaware Supreme Court
☐ Consider whether changed circumstances warrant a renewed application
☐ Explore alternative remedies (consent order, negotiated compliance schedule)

B. Interlocutory Appeal to the Delaware Supreme Court

Under Del. Supr. Ct. R. 42, a party may seek permission to appeal an interlocutory order:

☐ Certify that the stay denial involves a substantial issue of material importance
☐ File an application for interlocutory review within [____] days
☐ Request an emergency stay from the Supreme Court pending resolution

C. Timeline for Stay Proceedings

11. DOCUMENT CHECKLIST

Filing Preparation

☐ Stay request cover letter completed and signed
☐ Formal motion for stay of enforcement completed
☐ Statement of facts verified for accuracy
☐ Legal standard section cites 29 Del. C. § 10144
☐ Both prongs of the stay analysis fully addressed (substantial issues and irreparable harm)
☐ Supporting declarations or affidavits prepared and notarized
☐ Exhibits compiled, indexed, and tabbed
☐ Proposed order prepared

Required Attachments

☐ Copy of the agency decision/order/regulation being challenged
☐ Copy of the petition for judicial review (filed)
☐ Affidavit of Petitioner detailing irreparable harm
☐ Supporting documentation for substantiality of issues (e.g., legal memorandum)
☐ Financial documentation (if bond waiver or reduction requested)
☐ Proposed bond or security documentation (if applicable)
☐ Proposed order granting stay
☐ Certificate of service

Court-Specific Requirements (Superior Court)

☐ Petition for review filed within 30 days of agency decision — 29 Del. C. § 10142(b)
☐ Filing in correct county
☐ Service on agency and all parties of record
☐ Filing fee paid or waiver obtained
☐ Motion for stay filed with supporting memorandum
☐ Request for preliminary hearing included in the motion

Service Requirements

☐ Service on the agency's legal counsel or designated representative
☐ Service on the Attorney General's office (if applicable)
☐ Service on all other parties to the underlying agency proceeding
☐ Proof of service filed with the Court

12. PRACTICE TIPS

Delaware-Specific Considerations

1. Preliminary Hearing Requirement: Delaware is distinctive in requiring a preliminary hearing before a stay can be granted under Section 10144. This procedural safeguard means practitioners must prepare for what is essentially a mini-hearing on the stay factors — not just a paper motion.

2. Heightened Standard: The Delaware standard is notably stringent. The statute requires both substantial issues and irreparable harm. This is a conjunctive test — both prongs must be satisfied.

3. 30-Day Filing Deadline: Under 29 Del. C. § 10142(b), the petition for judicial review must generally be filed within 30 days after the agency decision. File the stay motion simultaneously with or promptly after the petition.

4. No Automatic Stay: As under most state APAs, filing the petition for review does not itself stay enforcement. Immediate action is required if a stay is needed.

5. Agency-Level Relief: While Section 10144 addresses court-granted stays, practitioners should also consider whether the specific agency's rules provide for agency-level stays. An agency stay may be obtainable faster than a court stay.

6. Regulation Challenges: Section 10144 applies to stays of both agency decisions and regulations. When challenging a regulation, the standard is the same — substantial issues and irreparable harm — but the analysis may differ in scope.

7. Superior Court Jurisdiction: Most administrative appeals go to the Superior Court, though some specialized tribunals have their own review procedures. Confirm the correct court before filing.

8. Bond Preparation: Although the statute does not mandate a bond, courts may impose one as a condition of the stay. Come prepared with a bonding arrangement or proposal to demonstrate good faith.

9. Evidence at Preliminary Hearing: Be ready to present evidence — not just argument — at the preliminary hearing. Affidavits, declarations, and documentary evidence supporting irreparable harm should be prepared in advance.

10. Sovereign Immunity: In arguing irreparable harm, emphasize that sovereign immunity may prevent Petitioner from recovering damages from the State if the agency action is later overturned, making judicial relief the only effective remedy.

13. SOURCES AND REFERENCES

Delaware Statutes

• 29 Del. C. § 10101 et seq. — Administrative Procedures Act
• 29 Del. C. § 10122 — Notice Requirements
• 29 Del. C. § 10125 — Contested Case Hearing Procedures
• 29 Del. C. § 10141 — Judicial Review of Regulations
• 29 Del. C. § 10142 — Judicial Review of Contested Cases
• 29 Del. C. § 10144 — Stay of Enforcement
• 29 Del. C. § 10161 — Judicial Review — Regulations

Court Rules

• Del. Super. Ct. Civ. R. 62 — Stay of Proceedings to Enforce a Judgment
• Del. Super. Ct. Civ. R. 65 — Injunctions and Restraining Orders
• Del. Super. Ct. Civ. R. 72 — Appeals from Administrative Agencies
• Del. Supr. Ct. R. 42 — Interlocutory Appeals

Research Sources

• Delaware Code Online — Chapter 101
• Justia — Delaware Code Title 29
• LawServer — Delaware Code Chapter 101
• Ballotpedia — Delaware Administrative Procedure Act

This template is provided for informational purposes only and does not constitute legal advice. Laws and procedures change frequently. Consult a qualified Delaware attorney before filing any administrative stay application. Last updated: 2026-03-08.