Stephens v. City of Austin, et al

Filing 91

ORDER DENYING 90 Motion to Stay. Signed by Judge David A. Ezra. (jk)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

DEBRA STEPHENS,

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Plaintiff,
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vs.
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THE CITY OF AUSTIN and
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ART ACEVEDO,
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Defendants.
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________________________________ )

CV. NO. 1:12-CV-659-DAE

ORDER DENYING PLAINTIFF’S MOTION TO STAY COURT ORDER
Before the Court is Motion to Stay1 the Court’s February 24, 2015
Order Approving Costs in the Amount of $4,736.75 to Defendants (Dkt. # 90),
filed by Debra Stephens (“Plaintiff”) on March 6, 2015. Pursuant to Local Rule
7(h), the Court finds this matter appropriate for disposition without a hearing. For
the reasons that follow, the Court DENIES Plaintiff’s Motion (Dkt. # 90).

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The instant filing came to the Court as a letter asking the Court to “suspend” its
February 24, 2015 order. (Dkt. # 90.) Because Plaintiff proceeds pro se, the Court
must liberally construe her filings, and construes her letter as a Motion to Stay.
See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Windland v. Quarterman, 578
F.3d 314, 316 (5th Cir. 2009) (noting the “well-established precedent requiring that
[the court] construe pro se briefs liberally”).

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BACKGROUND
Plaintiff brought the instant case against the City of Austin and Art
Acevedo following her April 2011 termination from the Austin Police
Department’s Forensic Lab, where she worked as a chemist. Shortly after filing in
state court, Defendants removed the case to this Court. Her amended complaint
alleged causes of action under 42 U.S.C. § 1983 and Title VII of the Civil Rights
Act of 1964, which were based on her claim that she was terminated as a result of
her exercise of her First Amendment right to free speech, her race, and her sex.
On October 8, 2014, this Court entered a final judgment in favor of
Defendants. (Dkt. # 83.) The matter is currently before the Fifth Circuit on
appeal. (See Dkt. # 88.) On February 24, 2015, this Court entered an order
approving costs in the amount of $4,736.75 to Defendants. (Dkt. # 89.) On March
6, 2015, Plaintiff filed the instant Motion to Stay Court Order. (Dkt. # 90.)
DISCUSSION
Under Federal Rule of Civil Procedure 62(d), a party can, as a matter
of right, stay the execution of a final judgment pending appeal if she posts a
supersedeas bond. Fed. R. Civ. P. 62(d). However, because this rule is limited to
final judgments pending appeal, In re Zapata Gulf Marine Corp., 941 F.2d 293,
295 (1991), a party can only stay attorney’s fees and costs if (1) the fees and costs
were awarded as part of the final judgment or (2) she has separately appealed the

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post-judgment order awarding fees and costs. See Armour v. Knowles, 512 F.3d
147, 156 (5th Cir. 2007) (holding that post-judgment orders on costs are not part of
the appeal of a final judgment and must be separately appealed); Lamar
Contractors Inc. v. Rolling Plains Constr., Inc., No. Civ. A. 11-1336, 2012 WL
5044966, at *2 (E.D. La. Oct. 18, 2012) (noting that costs could be stayed because
the plaintiff properly appealed the imposition of costs); Williams v. Amerus Life
Ins. Co., No. Civ. A. H-03-04692, 2006 WL 6508269, at *4 (S.D. Tex. July 11,
2006) (finding that Rule 62(d) did not preclude a stay on attorney’s fees and costs
where that issue had already been properly noticed on appeal).
Stephens appealed her case on October 30, 2014, the same day that
she filed her Objections to the Bill of Costs. (Dkt. # 86.) Her notice of appeal
specifically identifies the following issues for review: (1) the Court’s denial of her
objections to the Report and Recommendation; (2) the Court’s decision adopting in
part and vacating in part the Report and Recommendation; (3) whether there was
evidence of pretext. (Id.) In her notice of appeal, Stephens does not identify costs
as a basis for appeal, nor could she have: the Court did not issue its order
approving costs until February 24, 2015, rendering the decision a post-judgment
order. (Dkt. # 89.) Since Stephens has not separately appealed the Court’s
post-judgment order on costs, she does not have the right to stay the execution of
judgment under Rule 62(d).

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Stephens provides no reason for the stay, except for that she believes
she has ample grounds for appeal. To the extent this Court has the inherent
authority to temporarily stay executions of judgment, see, e.g., United States v.
Denvery & Rio Grande W. R.R., 223 F.2d 126, 127 (10th Cir. 1955), this Court
declines to exercise such discretion in the absence of any compelling reason from
Stephens.
Accordingly, the Court DENIES Plaintiff’s Motion (Dkt. # 90).
IT IS SO ORDERED.
DATED: Austin, Texas, April 2, 2015.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

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