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.

_________________________

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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

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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,

(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.

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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,

(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,

, 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

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on the Supreme Court’s decision in Florence,

(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,

(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

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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.

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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,

(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,

, at *1 (2d Cir. Dec. 2, 1997) (per curiam); see Olympia Equip. Leasing

Co. v. Western Union Tel. Co.,

(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:

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(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,

, 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,

(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

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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

appeal.

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