United States Court of Appeals
For the First Circuit
No. 02-1139
No. 02-1340
LUIS A. ACEVEDO-GARCÍA, ET AL.,
Plaintiffs, Appellees,
v.
HON. ROBERTO VERA-MONROIG,
INDIVIDUALLY AND AS MAYOR OF ADJUNTAS, ET AL.,
Defendants, Appellants.
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
No. 02-1529
MARÍA E. GÓMEZ-CANDELARIA, ET AL.,
Plaintiffs, Appellees,
v.
JOSÉ A. RIVERA-RODRÍGUEZ, ET AL.,
Defendants, Appellants,
____________________
ON URGENT MOTION SEEKING STAY PENDING APPEAL PURSUANT
TO RULE 8 OF THE RULES OF APPELLATE PROCEDURE
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
____________________
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
____________________
Ismael Rodríguez-Izquierdo on Urgent Motion Seeking Stay
Pending Appeal Pursuant to Rule 8 of the Rules of Appellate
Procedure for defendants, appellants José A. Rivera-Rodríguez, et
al.
Johanna Emmanuelli-Huertas, Jorge Martínez-Luciano and Law
Offices of Pedro Ortiz-Alvarez, P.S.C. on Second Urgent Motion
Requesting Stay of Execution Pending Appeal, Pursuant to Rule 8(a)
of the Federal Rules of Appellate Procedure for defendants,
appellants Hon. Roberto Vera-Monroig, et al.
Eliezer Aldarondo-Ortiz, Pablo Landrau-Pirazzi, Claudio Aliff-
Ortiz, Iván Castro-Ortiz and Aldarondo & López-Bras on Opposition
to Defendants-Appellants' Urgent Motion Seeking Stay Pending Appeal
Pursuant to Rule 8 of the Rules of Appellate Procedure for
plaintiffs, appellees María E. Gómez-Candelaria, et al.
Israel Roldán-González on Opposition/Reply to "Urgent Motion
Requesting Stay of Execution Pending Appeal Pursuant to Rule 8(A)
. . ." for plaintiffs, appellees Luis A. Acevedo-García, et al.
July 12, 2002
Per Curiam. In similar, albeit unrelated cases, two
Puerto Rico municipalities and certain of their officers seek stays
of judgment, pursuant to Fed. R. App. P. 8(a). In both cases
plaintiffs complain of alleged political discrimination on the
defendants' part in dismissing and/or failure to hire them in the
respective municipalities.
In one case, No. 02-1529, the Municipality of Gurabo and
two of its officials seek a stay of two orders of the district
court: one, awarding plaintiffs compensatory and punitive damages;
the other, ordering that plaintiffs be reinstated to their
positions with the municipality. Defendants now seek a stay without
the posting of any bond or conditioned upon the posting of a bond
in half the amount ordered by the district court.1
Defendants claim that they should not be required to post
a bond because the "municipality has a mechanism for assessing
future budgetary expenses" and hence has the capacity to meet the
amount of the judgment should it be affirmed on appeal.
Alternatively, they argue that the $2.7 million bond set by the
district court is excessive. In addition, the Gurabo defendants
claim that they are entitled to a stay, pursuant to Fed. R. Civ. P.
62(f). Finally, the Gurabo defendants seek a stay of the order
requiring reinstatement on the basis of the traditional four-part
standard applied to injunctive relief.
1
Although punitive damages were awarded against the individual
officers in Gurabo, the request for a stay from this court only
addresses the claims against the municipality.
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In the second case, Nos. 02-1139 and 1140, the
Municipality of Adjuntas and certain of its officers seek to stay
a judgment awarding plaintiffs compensatory damages against the
municipality and punitive damages against the individual
defendants. The procedural posture of this case is somewhat
different from that of the Gurabo case. The Gurabo defendants
moved for a stay of judgment, pursuant to Fed. R. Civ. P. 62. The
Adjuntas defendants sought a stay only in opposition to plaintiffs'
motion for a writ of execution, pursuant to Fed. R. Civ. P. 69.
In response to the opposition, the district court in the
Adjuntas case, acting "in accordance with the practice and
procedure of [Puerto Rico]," Fed. R. Civ. P. 69(a), ordered the
municipality to include the damages awarded against them in their
budget for the upcoming fiscal year. See 21 L.P.R.A. § 4303(c)
("it shall be mandatory [for a municipality] to include
appropriations with sufficient credits for the following purposes
. . . (3) payment of court judgments"). The court ordered the
individual defendants to pay damages by June 14 but did grant them
a stay, conditioned on their posting of a supersedeas bond in the
damage amount.
The Municipality of Adjuntas now seeks a stay without the
posting of any bond or conditioned upon the posting of a
"reasonable" supersedeas bond. It bases its claim on the adverse
public policy consequences that would attend the district court
order to include the judgment in the municipal budget and on the
fact that Puerto Rico law entitles municipalities to stays of
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monetary judgments without the posting of any bond, P.R. R. Civ. P.
69.6.
The individual defendants in the Adjuntas case seek a
stay without the posting of bond on the ground that Puerto Rico law
provides that the Commonwealth will "assume the payment of any
judgment that may be entered against an [official of the
Commonwealth sued in individual capacity for actions undertaken in
the course of his employment]."2 32 L.P.R.A. § 3085. Since the
Commonwealth will assume any debt, the plaintiffs are guaranteed
payment and, hence, defendants claim, no security is needed. Given
the complexity of the issues raised, this court granted temporary
stays in both cases.
Defendants seek to stay judgments ordering both monetary
and injunctive relief. Stays of injunctive orders, such as for
reinstatement, are evaluated under the traditional four-part
standard applied to injunctions.3 "The sine qua non [of the stay
pending appeal standard] is whether the [movants] are likely to
succeed on the merits." Weaver v. Henderson, 984 F.2d 11, 12 (1st
Cir. 1993). In essence, the issuance of a stay depends on "whether
the harm caused [movant] without the [stay], in light of the
[movant's] likelihood of eventual success on the merits, outweighs
2
A municipal officer is considered an official of the
Commonwealth for purposes of 32 L.P.R.A. § 3085.
3
The considerations are: (1) whether the applicant has made
a strong showing of success on the merits; (2) whether the
applicant will be irreparably harmed absent injunctive relief; (3)
whether issuance of the stay will injure other parties; and (4)
where the public interest lies. Hilton v. Braunskill, 481 U.S.
770, 776-77 (1987).
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the harm the [stay] will cause [the non-moving party]." United
Steelworkers of America v. Textron, Inc., 836 F.2d 6, 7 (1st Cir.
1987) (internal quotations omitted).
Stays of monetary judgments are ordinarily sought under
either Fed. R. Civ. P. 62(d) or 62(f).4 Under Rule 62(d),
execution of a money judgment is automatically stayed pending
appeal upon the posting of a supersedeas bond. The nature and the
amount of the bond is entrusted to the discretion of the trial
court. Sckolnick v. Harlow, 820 F.2d 13, 15 (1st Cir. 1987). The
bond requirement is intended to protect the interest of the
creditor's right under judgment during the pendency of the appeal.
Prudential Ins. Co. of Am. v. Boyd, 781 F.2d 1494, 1498 (11th Cir.
1986). 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. Olympia Equipment
Leasing Corp. v. Western Union Tel. Co., 786 F.2d 794, 796 (7th Cir.
1986).
Fed.R.Civ.P. 62(f) provides, on the other hand, that
"[i]n any state in which a judgment is a lien upon the property of
the judgment debtor . . ., a judgment debtor is entitled . . . to
such a stay as would be accorded the judgment debtor had the action
4
It is at least arguable that a monetary judgment may also be
stayed under the traditional standard for issuing injunctions.
Adequate protection for plaintiffs/appellees would be a factor in
evaluating the propriety of any such request. The municipality in
the instant case has not sought to enjoin the damage award on these
grounds.
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been maintained in the courts of that state." The district court
must grant a stay without a bond if the requirements of Rule 62(f)
are met. Absent a stay on some ground, plaintiffs are free to seek
execution of the judgment, pursuant to Fed. R. Civ. P. 69.
As far as the Gurabo defendants' request for a stay of
the order of reinstatement is concerned, we do not believe that the
defendants have shown a clear likelihood of success of the merits,
even if they are correct in contending that the plaintiffs lack a
property interest in their positions under Puerto Rico law. Their
claim that the monetary judgment should be stayed because the
municipality has the capacity to meet any judgment upheld on appeal
was not made below and, in any event, the municipality has failed
to provide this court with adequate documentation supporting its
capacity. See, e.g., Sealover v. Carey Canada, 806 F.Supp. 59, 62
(M.D. Pa. 1992) (while proof of ability to pay is proper ground for
omitting bond requirement, claim must be rejected where the court
lacks "information necessary to make such a determination"). Nor,
on the record before us, do we find any merit in the defendants'
claim that the bond set by the district court is excessive.
The Gurabo defendants also claim to be entitled to a stay
pursuant to Fed. R. Civ. P. 62(f). However, this rule applies only
when the "judgment is a lien upon the property of a judgment
debtor." Since, under Puerto Rico law, a judgment becomes a lien
upon property only after the judgment creditor applies to the court
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and the court issues a writ of attachment, P.R. R. Civ. P. 51.3,
Rule 62(f) does not appear to apply.5
This brings us to the Adjuntas defendants. Even though
the municipality may be entitled to a stay without posting a bond
in Puerto Rico courts, it is entitled to a similar stay in federal
court only if the strictures of Rule 62(f) are met. The
municipality has provided no argument to show that Rule 62(f) is
satisfied, and, as we have already noted, such a claim does not
seem likely to succeed.
With regard to the district court order that the
municipality include the cost of the judgment in its 2002-2003
municipal budget (the only relief against the municipality
plaintiffs now claim to be seeking), we agree that the public
interest considerations brought forth by the municipality are not
frivolous. See Olympia Equipment Leasing Corp., 786 F.2d at 796
("inflexible requirement of a bond" may be inappropriate in certain
situations). However, these arguments have not yet been presented
in the district court.
As for the individual Adjuntas defendants, Puerto Rico
law provides that the Commonwealth will in certain cases "assume
the payment of any judgment that may be entered against an
[official of the Commonwealth sued in his personal capacity]" due
5
See Marandino v. D'Elia, 151 F.R.D. 227, 228 (D.Conn. 1993)
(judgment debtor not entitled to automatic stay under Rule 62(f)
because Connecticut law required that certificate be filed in
record office before lien was created); Aldasoro v. Kennerson, 915
F.Supp. 188, 190-91 (S.D. Cal. 1995) (Rule 62(f) inapplicable
because to create lien judgment creditor must file judgment in
office of County Recorder).
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to "acts or omissions committed in good faith in the course of his
employment and within the scope of his functions." 32 L.P.R.A. §
3085. Since the individual defendants have not shown that the
Commonwealth will find that the acts in the instant case were
"committed in good faith," the possibility exists that the
Commonwealth will not assume payment of the judgment. Thus, the
district court did not abuse its discretion in ordering the
individual defendants to post a supersedeas bond.
Ordinarily, the failure of the municipalities thus far to
justify stays would resolve the issue of interim relief. However,
at the very least, the municipalities and the individual defendants
should be given time to post supersedeas bonds; and, if they have
any arguments as to why bonds in the full amount of the judgments
are unnecessary and why lesser amounts will suffice, we leave it
open to the district court to entertain such arguments.
Accordingly, we deny the stays sought and vacate our
current temporary stay effective 10 days from the date of this
order. During that period, the defendants can post bonds
consistent with Rule 62(d) or return to the district court for any
other relief including extensions of time or reductions in amount
that that court may in its discretion be prepared to afford. The
motion made by defendants/appellants in the Gurabo case "requesting
certification to the Puerto Rico Supreme Court" is denied.
It is so ordered.
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