14‐1388(L) In re Nassau County Strip Search Cases
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _________________________
August Term, 2014
(Submitted: December 23, 2014 Decided: April 17, 2015)
Docket Nos. 14‐1388(L); 14‐1437(XAP) _________________________
IN RE NASSAU COUNTY STRIP SEARCH CASES
GARDY AUGUSTIN, et al.,
Plaintiffs‐Appellees‐Cross‐Appellants,
‐‐ v. ‐‐
NASSAU COUNTY SHERIFF’S DEPARTMENT, et al.,
Defendants‐Appellants‐Cross‐Appellees. _________________________
Before:
HALL, CHIN, and DRONEY, Circuit Judges.
_________________________
Appellants Nassau County and certain county officials seek a stay,
pending appeal, of an April 11, 2014 district court judgment, without being
required to post a bond or comply with other conditions. Adopting and
applying criteria to decide whether to waive the supersedeas bond requirement
under Fed. R. Civ. P. 62(d), we GRANT Appellants’ motion.
ROBERT LLOYD HERBST, NEW YORK, NEW YORK, for Plaintiff‐Appellee‐Cross‐ Appellant
JONATHAN CLIFFORD MOORE, Beldock Levine & Hoffman LLP, New York, New York, for Plaintiff‐Appellee‐Cross‐Appellant
JEFFREY G. SMITH, Wolf Haldenstein Adler Freeman & Herz LLP, New York, New York, for Plaintiff‐Appellee‐Cross‐Appellant
MATTHEW D. BRINCKERHOFF, Emery Celli Brinckerhoff & Abady LLP, New York, New York, for Plaintiff‐Appellee‐Cross‐Appellant
ROBERT F. VAN DER WAGG AND GERALD R. PODLESAK, Office of the Nassau County Attorney, Mineola, New York, for Defendants‐Appellants‐Cross‐ Appellees. _________________________
PER CURIAM:
For more than a decade, the parties in this matter have litigated in the
United States District Court for the Eastern District of New York the
constitutionality of Nassau County’s blanket policy of strip searching individuals
arrested for misdemeanors or non‐criminal offenses. The defendants, Nassau
County municipal employees and entities (collectively, “Nassau County”),
conceded liability, and the district court (Hurley, J.) entered summary judgment
on that issue. In 2012, however, the Supreme Court held in Florence v. Bd. of
Chosen Freeholders, 132 S. Ct. 1510 (2012), that under certain circumstances, the
Fourth Amendment does not prohibit such searches. In light of that decision,
Nassau County moved to vacate the summary judgment order and to dismiss
the case. The district court granted the motion as to the federal constitutional
claim but denied the request as to the state constitutional claim and entered final
judgment in favor of the plaintiffs.
After the parties filed cross‐appeals, the district court, pursuant to Fed. R.
Civ. P. 62(d), granted in part Nassau County’s motion to stay enforcement of the
judgment; the court imposed, however, a 180‐day deadline to deposit funds or to
post a bond over Nassau County’s objections. Nassau County has moved to stay
the district court’s judgment pending appeal without being required to post a
bond or comply with other conditions. For the reasons that follow, we granted
Nassau County’s motion by order dated December 23, 2014.
BACKGROUND
A. Concession of Liability and Judgment
In 1999, the plaintiffs brought three separate actions, later consolidated,
alleging they had been arrested on misdemeanor charges and were strip
searched, without individualized suspicion, in violation of their federal and state
constitutional rights. Nassau County conceded liability “for all purposes” in
light of our holding in Shain v. Ellison, 273 F.3d 56 (2d Cir. 2001), that the strip
search policy violated the Fourth Amendment. After the district court denied
multiple motions for class certification, Nassau County entered into a settlement
agreement with the ten named plaintiffs, who expressly retained the right to
appeal the denial of certification on behalf of the putative class. On appeal, we
instructed the district court to certify a class as to liability and to consider
whether to certify a class as to damages. In re Nassau Cnty. Strip Search Cases, 461
F.3d 219, 230‐31 (2d Cir. 2006). The district court certified both classes, granted
summary judgment on liability in favor of the plaintiffs in light of Nassau
County’s concession, and held a bench trial on damages.
In 2012, before the district court entered final judgment, Nassau County
moved to vacate the summary judgment order and to dismiss the action based
on the Supreme Court’s decision in Florence, 132 S. Ct. at 1513 (holding that
“every detainee who will be admitted to the general population [of a jail] may be
required to undergo a close visual inspection while undressed”). The district
court granted the motion as to the federal claim, holding that Florence constituted
an intervening change in controlling law. As to the state law claim, however, the
district court determined that Florence did not warrant vacatur of Nassau
County’s concession of liability. The district court entered final judgment,
awarding $11.5 million to the class on the state claim, and directed Nassau
County to deposit the funds with the court within 30 days. The parties filed
cross‐appeals from that judgment, which are currently pending.
B. Rule 62(d) Motion
Nassau County then moved in the district court, pursuant to Rule 62(d), to
stay enforcement of the judgment pending appeal without requiring a bond. At
a May 2014 hearing, the district court engaged in two analyses. First, the district
court found that Nassau County had satisfied the traditional stay factors under
Hilton v. Braunskill, 481 U.S. 770 (1987); see Fed. R. App. P. 8(a). Second, the
district court explained that its concern was not whether the plaintiffs would
ultimately be paid if they prevailed on appeal (because Nassau County had
ample resources), but whether they would be paid in a timely fashion. The
district court ruled that Nassau County’s obligation to deposit the funds with the
court would be stayed for 180 days, or indefinitely, if Nassau County posted a
bond within that period. The district court also held that no funds would be
disbursed to the class members unless and until the plaintiffs prevailed on
appeal.
DISCUSSION
The parties have filed their main briefs. Nassau County now moves “for a
continuation of the temporary stay but without the depositing of monies or the
posting of a bond or the requirement of any condition while the appeal to this
Court is pending.” Nassau County argues, inter alia, that pursuant to the district
court’s order, the plaintiffs “must wait anyway” to recover until the conclusion
of the appeals process, and that it is essentially guaranteed that Nassau County, a
government entity, will pay the judgment if the plaintiffs prevail. On December
23, 2014, we issued an order granting Nassau County’s motion to stay
enforcement of the district court’s judgment, without the posting of a bond or
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14‐1388(L) In re Nassau County Strip Search Cases
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _________________________
August Term, 2014
(Submitted: December 23, 2014 Decided: April 17, 2015)
Docket Nos. 14‐1388(L); 14‐1437(XAP) _________________________
IN RE NASSAU COUNTY STRIP SEARCH CASES
GARDY AUGUSTIN, et al.,
Plaintiffs‐Appellees‐Cross‐Appellants,
‐‐ v. ‐‐
NASSAU COUNTY SHERIFF’S DEPARTMENT, et al.,
Defendants‐Appellants‐Cross‐Appellees. _________________________
Before:
HALL, CHIN, and DRONEY, Circuit Judges.
_________________________
Appellants Nassau County and certain county officials seek a stay,
pending appeal, of an April 11, 2014 district court judgment, without being
required to post a bond or comply with other conditions. Adopting and
applying criteria to decide whether to waive the supersedeas bond requirement
under Fed. R. Civ. P. 62(d), we GRANT Appellants’ motion.
ROBERT LLOYD HERBST, NEW YORK, NEW YORK, for Plaintiff‐Appellee‐Cross‐ Appellant
JONATHAN CLIFFORD MOORE, Beldock Levine & Hoffman LLP, New York, New York, for Plaintiff‐Appellee‐Cross‐Appellant
JEFFREY G. SMITH, Wolf Haldenstein Adler Freeman & Herz LLP, New York, New York, for Plaintiff‐Appellee‐Cross‐Appellant
MATTHEW D. BRINCKERHOFF, Emery Celli Brinckerhoff & Abady LLP, New York, New York, for Plaintiff‐Appellee‐Cross‐Appellant
ROBERT F. VAN DER WAGG AND GERALD R. PODLESAK, Office of the Nassau County Attorney, Mineola, New York, for Defendants‐Appellants‐Cross‐ Appellees. _________________________
PER CURIAM:
For more than a decade, the parties in this matter have litigated in the
United States District Court for the Eastern District of New York the
constitutionality of Nassau County’s blanket policy of strip searching individuals
arrested for misdemeanors or non‐criminal offenses. The defendants, Nassau
County municipal employees and entities (collectively, “Nassau County”),
conceded liability, and the district court (Hurley, J.) entered summary judgment
on that issue. In 2012, however, the Supreme Court held in Florence v. Bd. of
Chosen Freeholders, 132 S. Ct. 1510 (2012), that under certain circumstances, the
Fourth Amendment does not prohibit such searches. In light of that decision,
Nassau County moved to vacate the summary judgment order and to dismiss
the case. The district court granted the motion as to the federal constitutional
claim but denied the request as to the state constitutional claim and entered final
judgment in favor of the plaintiffs.
After the parties filed cross‐appeals, the district court, pursuant to Fed. R.
Civ. P. 62(d), granted in part Nassau County’s motion to stay enforcement of the
judgment; the court imposed, however, a 180‐day deadline to deposit funds or to
post a bond over Nassau County’s objections. Nassau County has moved to stay
the district court’s judgment pending appeal without being required to post a
bond or comply with other conditions. For the reasons that follow, we granted
Nassau County’s motion by order dated December 23, 2014.
BACKGROUND
A. Concession of Liability and Judgment
In 1999, the plaintiffs brought three separate actions, later consolidated,
alleging they had been arrested on misdemeanor charges and were strip
searched, without individualized suspicion, in violation of their federal and state
constitutional rights. Nassau County conceded liability “for all purposes” in
light of our holding in Shain v. Ellison, 273 F.3d 56 (2d Cir. 2001), that the strip
search policy violated the Fourth Amendment. After the district court denied
multiple motions for class certification, Nassau County entered into a settlement
agreement with the ten named plaintiffs, who expressly retained the right to
appeal the denial of certification on behalf of the putative class. On appeal, we
instructed the district court to certify a class as to liability and to consider
whether to certify a class as to damages. In re Nassau Cnty. Strip Search Cases, 461
F.3d 219, 230‐31 (2d Cir. 2006). The district court certified both classes, granted
summary judgment on liability in favor of the plaintiffs in light of Nassau
County’s concession, and held a bench trial on damages.
In 2012, before the district court entered final judgment, Nassau County
moved to vacate the summary judgment order and to dismiss the action based
on the Supreme Court’s decision in Florence, 132 S. Ct. at 1513 (holding that
“every detainee who will be admitted to the general population [of a jail] may be
required to undergo a close visual inspection while undressed”). The district
court granted the motion as to the federal claim, holding that Florence constituted
an intervening change in controlling law. As to the state law claim, however, the
district court determined that Florence did not warrant vacatur of Nassau
County’s concession of liability. The district court entered final judgment,
awarding $11.5 million to the class on the state claim, and directed Nassau
County to deposit the funds with the court within 30 days. The parties filed
cross‐appeals from that judgment, which are currently pending.
B. Rule 62(d) Motion
Nassau County then moved in the district court, pursuant to Rule 62(d), to
stay enforcement of the judgment pending appeal without requiring a bond. At
a May 2014 hearing, the district court engaged in two analyses. First, the district
court found that Nassau County had satisfied the traditional stay factors under
Hilton v. Braunskill, 481 U.S. 770 (1987); see Fed. R. App. P. 8(a). Second, the
district court explained that its concern was not whether the plaintiffs would
ultimately be paid if they prevailed on appeal (because Nassau County had
ample resources), but whether they would be paid in a timely fashion. The
district court ruled that Nassau County’s obligation to deposit the funds with the
court would be stayed for 180 days, or indefinitely, if Nassau County posted a
bond within that period. The district court also held that no funds would be
disbursed to the class members unless and until the plaintiffs prevailed on
appeal.
DISCUSSION
The parties have filed their main briefs. Nassau County now moves “for a
continuation of the temporary stay but without the depositing of monies or the
posting of a bond or the requirement of any condition while the appeal to this
Court is pending.” Nassau County argues, inter alia, that pursuant to the district
court’s order, the plaintiffs “must wait anyway” to recover until the conclusion
of the appeals process, and that it is essentially guaranteed that Nassau County, a
government entity, will pay the judgment if the plaintiffs prevail. On December
23, 2014, we issued an order granting Nassau County’s motion to stay
enforcement of the district court’s judgment, without the posting of a bond or
other condition, noting that an opinion would follow in due course.
Rule 62(d) provides that an appellant is entitled to a stay pending appeal
by posting a supersedeas bond. Fed. R. Civ. P. 62(d). The purpose of the rule is
to ensure “that the prevailing party will recover in full, if the decision should be
affirmed, while protecting the other side against the risk that payment cannot be
recouped if the decision should be reversed.” Cleveland Hair Clinic, Inc. v. Puig,
104 F.3d 123, 125 (7th Cir. 1997). A district court therefore may, in its discretion,
waive the bond requirement “if the appellant provides an acceptable alternative
means of securing the judgment.” FDIC v. Ann‐High Assocs., No. 97‐6095, 1997
WL 1877195, at *1 (2d Cir. Dec. 2, 1997) (per curiam); see Olympia Equip. Leasing
Co. v. Western Union Tel. Co., 786 F.2d 794, 796 (7th Cir. 1986) (“[A]n inflexible
requirement of a bond would be inappropriate . . . where the defendant’s ability
to pay the judgment is so plain that the cost of the bond would be a waste of
money.”).
This Court has not announced, in a reported decision, what factors a
district court may consider in determining whether to waive the supersedeas
bond requirement under Rule 62(d). The Seventh Circuit, however, has
enumerated several criteria, which we now adopt as non‐exclusive factors that a
district court may consider:
(1) the complexity of the collection process; (2) the amount of time required to obtain a judgment after it is affirmed on appeal; (3) the degree of confidence that the district court has in the availability of funds to pay the judgment; (4) whether the defendant’s ability to pay the judgment is so plain that the cost of a bond would be a waste of money; and (5) whether the defendant is in such a precarious financial situation that the requirement to post a bond would place other creditors of the defendant in an insecure position.
Dillon v. Chicago, 866 F.2d 902, 904‐05 (7th Cir. 1988) (internal quotation marks
and citations omitted). These criteria, in contrast to the traditional stay factors,
more directly address the primary purpose of Rule 62(d): to ensure recovery for a
party who ultimately prevails on appeal, and to protect the judgment debtor
from the risk of losing the money if the decision is reversed. Cf. Acevedo‐Garcia v.
Vera‐Monroig, 296 F.3d 13, 17 (1 st Cir. 2002). (per curiam) (“Courts have held that
no bond is required if: (1) the defendant’s ability to pay is so plain that the
posting of a bond would be a waste of money; or (2) the bond would put the
defendant’s other creditors in undue jeopardy.”).
Here, as did the appellant in Dillon, Nassau County has demonstrated the
existence of appropriated funds, “available for the purpose of paying judgments
without substantial delay or other difficulty.” Id. at 905. The plaintiffs offer no
evidence to the contrary. They argue only that the Nassau County Legislature
had not, at the outset of briefing, passed an ordinance or bond resolution to
provide for immediate payment. Nassau County reports that the ordinance has
since been adopted and that final approval is a “formality.” Applying the Dillon
factors to these facts, there is no practical reason to require Nassau County to
post a bond or deposit funds in order to secure a Rule 62(d) stay pending appeal.
Accordingly, IT IS ORDERED that the judgment, including the order for
payment of fees and costs, is stayed without bond or other condition pending