Opinion
No. 97-4041-SAC.
November 7, 2001
MEMORANDUM AND ORDER
This employment retaliation case comes before the court on defendant's motion to stay operation or enforcement of judgment pending appeal (Dk. 191), and plaintiff's motion for enforcement of judgment (Dk. 192). The parties are familiar with the court's previous orders in this case, including the judgment which, among other matters, ordered that plaintiff be instated to a certain position, and that she receive certain monetary damages.
Defendant has now filed a notice of appeal. (Dk. 190). The court will address the parties motions in light of its previous rulings and the current procedural posture of the case.
A. Reinstatement
The suspension of equitable or injunctive relief ordered by a district court during the pendency of an appeal is authorized by Federal Rule of Civil Procedure 62(c). The Rule provides that when an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.
The stay of an equitable order is a unique device which is rarely granted. United States v. Louisiana, 815 F. Supp. 947, 948 (E.D.La. 1993). See Fed.R.Civ.P. 62(a). To obtain such a stay, the applicant must: (1) demonstrate its strong position on the merits of the appeal; (2) demonstrate irreparable injury if the stay is denied; (3) show that a stay would not substantially harm other parties to the litigation; and (4) show that the public interest favors a stay. Securities Investor Protection Corp. v. Blinder, Robinson Co., Inc., 962 F.2d 960, 968 (10th Cir. 1992) ; National Indian Youth Council v. Andrus, 623 F.2d 694, 695 (10th Cir. 1980); Battle v. Anderson, 564 F.2d 388, 397 (10th Cir. 1977). Defendant, as the movant, has the burden of demonstrating these four factors. First Savings Bank, F.S.B. v. First Bank Sys., Inc., 163 F.R.D. 612, 614 (D.Kan. 1995).
Defendant recognizes that decision of this motion is in the court's discretion, but fails to acknowledge any of the above factors and makes no showing relative to any of them except to allege that plaintiff will not be harmed by a stay because she will receive money in lieu of time not worked, should she prevail on appeal.
Defendant has failed to state in the current motion any position on the merits of the appeal, but the court is familiar with what arguments may be raised on appeal from the issues raised throughout trial or in defendant's post-trial motions. The court does not believe the merits of the appeal are strong. The court can only conclude that defendant has not met its burden to show the existence of a strong position on the merits of the appeal. See Malarkey v. Texaco, Inc., 794 F. Supp. 1248, 1249 (S.D.N.Y. 1992) (where movant simply repeated objections and arguments already addressed and did not cite any new or otherwise persuasive authority in support of its position, it did not make the strong showing required); Dewey v. Reynolds Metals Co., 304 F. Supp. 1116 (W.D.Mich. 1969) (same), rev'd on other grounds, 429 F.2d 324 (6th Cir. 1970).
On the other hand, plaintiff may suffer substantial harm if a stay is ordered. In plaintiff's current employment situation, she works less often and makes less money than she would in the ordered position. Receiving money in lieu of working is not the same as working and receiving money for doing so. The court has already found that plaintiff is entitled to reinstatement and its attendant benefits. A denial of plaintiff's rights under federal law, even if only during the pendency of appellate proceedings, constitutes a real and substantial injury to her. See E.E.O.C. v. Los Angeles County, 531 F. Supp. 122 (C.D.Cal. 1982) (denying stay pending appeal in age discrimination case), aff'd, 706 F.2d 1039 (9th Cir. 1983), cert. denied, 464 U.S. 1073 (1984). Defendant does not allege that it will suffer irreparable harm in the event the stay is not granted.
Further, the public interest is better served by a denial of the stay. See Dutton v. Johnson County Bd. of County Com'rs, 884 F. Supp. 431, 434-35 (D.Kan. 1995) (staying relief of reinstatement pending appeal in disability discrimination case not in the public interest); Duke v. Uniroyal, Inc., 777 F. Supp. 428, 433-34 (E.D.N.C. 1991) (public interest in favor of eradicating discrimination — "public needs to know that courts are committed to enforcing civil rights legislation"). A jury and this court have found that plaintiff is entitled to reinstatement. The public interest would be best served by permitting plaintiff to return without unnecessary delay to the position she would have had absent unlawful retaliation.
After applying the appropriate criteria to defendant's request, the court finds that the defendant has not met its burden to show that a stay pending appeal of the order of reinstatement is warranted. Defendant's motion to stay the reinstatement order pending appeal is therefore denied.
B. Money Judgment
Notwithstanding the court's ruling with respect to its order of equitable relief, the defendant is entitled to a stay of execution of the money judgment as a matter of right in accordance with Federal Rule of Civil Procedure 62(d). Wilmer v. Board of County Comm'rs of Leavenworth County, Kan., 844 F. Supp. 1414, 1417 (D.Kan. 1993), aff'd, 28 F.3d 114 (10th Cir. 1994). That rule states that when an appeal is taken the appellant, by giving a supersedeas bond, may obtain a stay subject to the exceptions contained in subdivision (a) of the rule. None of those exceptions applies to this money judgment.
No bond is required of the United States when it appeals. Fed.R.Civ.P. 62(e). The purpose of posting a supersedeas bond is to insure that the judgment creditor is secured from losses which may result from a stay. Lamon v. City of Shawnee, Kan., 758 F. Supp. 654, 656 (D.Kan. 1991), rev'd in part on other grounds, 972 F.2d 1145 (10th Cir. 1992). The federal government is financially secure such that plaintiff may be assured of not suffering any financial loss which may otherwise result from a stay.
IT IS THEREFORE ORDERED that defendant's motion for a stay of judgment pending appeal (Dk. 191) is granted in part, to the extent that execution of the money judgment shall be suspended, and denied in part with respect to the order of reinstatement.
IT IS FURTHER ORDERED that plaintiff's motion for enforcement of judgment (Dk. 192) is granted in part, with respect to the order of reinstatement, and is denied in part as to the execution of the money judgment.