Stays in Federal Court Pending Appeal: Is a bond the only way?

We revisit the issue of stays pending appeal; this time in federal court. We know that a party is entitled to a stay upon the posting of a bond. However, there may be other options for obtaining a stay based on your client’s circumstances.

Federal Rule of Appellate Procedure 8 permits a party to apply to the district court for “a stay of the judgment or order of a district court pending appeal.” Fed. R. App. P. 8(a)(1)(A). The issue of whether to grant a stay is governed by Rule 62 of the Federal Rules of Civil Procedure. Thomas v. City of Jacksonville, 2016 WL 9185279, at *1 (M.D. Fla. Oct. 13, 2016) (holding that F.R.C.P. 62 is “the procedural vehicle” for considering a request for a stay or “an injunction pending appeal” under Federal Rule of Appellate Procedure 8)

In 2018, Rule 62 was re-organized. Subdivision 62(b) modified subdivision (d)’s requirements regarding obtaining a stay. “The new rule’s text makes explicit the opportunity to post security in a form other than a bond. The stay takes effect when the court approves the bond or other security.” See, Comments for 2018 Amendments to Fed. R. Civ. P. 62. (emphasis added)

District courts have inherent discretionary authority in setting bonds and security. See, Texaco, Inc., v. Pennzoil Company, 784 F.2d 1133, 1154, 1155 (2d Cir.1986), (court stating a judgment creditor’s primary concern when a judgment in his favor is stayed pending appeal is that he be “secure … from loss resulting from the stay of execution….” ) See, Wunschel & Small, Inc., v. United States, 554 F.Supp. 444–45 (U.S.Cl.Ct.1983) (Rule 62(d) does not preclude the court from issuing a stay without a bond or upon the posting of a partial bond).

In a case out of the Northern District of Florida, the court granted a stay based on a statement that promised to pay upon the conclusion of the appeal. The statement read as follows:

Proceedings to enforce the money judgment also will be stayed without a further order upon the filing of a statement by the Department, signed by a person authorized to sign it, stating that, if the judgment is upheld on appeal, the Department will pay the judgment within 30 days. For this purpose, if no appeal is filed, the judgment is “upheld on appeal” on the deadline for filing an appeal. If an appeal is filed, the Eleventh Circuit dismisses the appeal or affirms the judgment, and no petition for certiorari is filed, the judgment is “upheld on appeal” on the deadline for filing a petition for certiorari. If a petition for certiorari is filed, the judgment is “upheld on appeal” when the petition is denied or vacated or the judgment is otherwise upheld by the Supreme Court.

See, Miller v. Fla. Dept. of Corrections, 2011 WL 6021577 (unreported) (N.D. Fla. 2011).

In many cases, your client will have to post a bond in order to stay execution, but depending on the circumstances it may be worth the time and effort to explore other security that might satisfy the court.