No. 03-6542
            _________________________________________

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE SIXTH CIRCUIT
            _________________________________________

EQUAL EMPLOYMENT OPPORTUNITY
   COMMISSION,

          Plaintiff-Appellant,

v.

ROBERTSON-CHEATHAM FARMERS
   COOPERATIVE,

          Defendant-Appellee.
          ______________________________________________

         On Appeal from the United States District Court
               for the Middle District of Tennessee
              Hon. Thomas A. Wiseman, Jr., Presiding
          ______________________________________________

                  BRIEF OF THE EQUAL EMPLOYMENT
               OPPORTUNITY COMMISSION AS APPELLANT
         _______________________________________________

ERIC S. DREIBAND                   GAIL S. COLEMAN
General Counsel                         Attorney

CAROLYN L. WHEELER            	   EQUAL EMPLOYMENT
Acting Associate General Counsel           OPPORTUNITY COMMISSION
                                   Office of General Counsel
                                   1801 L Street, N.W., Room 7034
                                   Washington, D.C. 20507
                                   (202) 663-4055


                        TABLE OF CONTENTS

                                                             Page

TITLE VII FACT SHEET . . . . . . . . . . . . . . . . . . . . .iii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . iv

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . .v

STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . .1

STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . .2

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .3

     A.   Course of Proceedings. . . . . . . . . . . . . . . . .3

     B.   Statement of Facts . . . . . . . . . . . . . . . . . .4

     C.   District Court Opinion . . . . . . . . . . . . . . . .6

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . .7

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

     A.   Standard of Review . . . . . . . . . . . . . . . . . .8

     B.   Because Robertson-Cheatham Has Provided No Evidence
          That It Will Be Able to Satisfy the Judgment Against It 
          Following Appeal, the District Court Abused Its Discretion
          By Staying Execution of the Judgment Without 
          Requiring Robertson-Cheatham to Post a Supersedeas
          Bond . . . . . . . . . . . . . . . . . . . . . . . . .8

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 13

ADDENDUM: Designation of Appendix Contents

CERTIFICATE OF SERVICE


          UNITED STATES COURT OF APPEALS, SIXTH CIRCUIT
                 FACT SHEET FOR TITLE VII APPEALS

     Despite the fact that the district court and the Court of Appeals have coded
this case as a Title VII matter, the case arises solely under the Age Discrimination
in Employment Act, 29 U.S.C. 621 et seq.  (See R.1, Complaint at 1, App. at 12.) 
Accordingly, the Sixth Circuit rules do not require either party to file a Title VII
fact sheet.  See 6th Cir. R. 28(c).


                STATEMENT REGARDING ORAL ARGUMENT
     The Equal Employment Opportunity Commission ("EEOC") requests oral
argument so that it can address any questions this Court may have regarding the
district court's failure to require a supersedeas bond.  Oral argument will help to
demonstrate that the district court abused its discretion in concluding that
Robertson-Cheatham had proved its ability to pay the judgment following appeal
despite having introduced no evidence regarding its financial status.


                       TABLE OF AUTHORITIES


                           No. 03-6542
            _________________________________________

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE SIXTH CIRCUIT
            _________________________________________

EQUAL EMPLOYMENT OPPORTUNITY
   COMMISSION,

          Plaintiff-Appellant,

v.

ROBERTSON-CHEATHAM FARMERS
   COOPERATIVE,

          Defendant-Appellee.

          ______________________________________________

         On Appeal from the United States District Court
               for the Middle District of Tennessee
              Hon. Thomas A. Wiseman, Jr., Presiding
          ______________________________________________

                  BRIEF OF THE EQUAL EMPLOYMENT
               OPPORTUNITY COMMISSION AS APPELLANT
         _______________________________________________

                    STATEMENT OF JURISDICTION

     The district court had jurisdiction over this age discrimination case under 28
U.S.C. 1331 and 29 U.S.C. 626(b).  Based on the jury's verdict for the EEOC,
the district court entered final judgment awarding the EEOC $37,043.36 in
backpay (R. 104, Judgment, App. at 18) and $3,890.52 in costs (R. 114, Costs,
App. at 23).  On October 17, 2003, the district court stayed execution of the
judgment pending appeal without requiring Robertson-Cheatham to post a
supersedeas bond.  (R. 124, Order, App. at 44.)  Pursuant to Rule 4(a)(1)(B) of 
the Federal Rules of Appellate Procedure, the EEOC filed a timely notice of appeal
from this order.  (R. 126, Notice of Appeal, App. at 45.)  This Court has
jurisdiction over the EEOC's appeal because the issue of a supersedeas bond is a
collateral order, appealable separately from an appeal on the merits.  See Olympia
Equip. Leasing Co. v. W. Union Tel. Co., 786 F.2d 794, 796 (7th Cir. 1986) (citing
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)); see also Miami Int'l
Realty Co. v. Paynter, 807 F.2d 871, 871 (10th Cir. 1986) (considering appeal from
supersedeas bond separately from appeal on merits); Poplar Grove Planting & Ref.
Co. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1190 (5th Cir. 1979) (same).

                      STATEMENT OF THE ISSUE
     Did the district court abuse its discretion in staying execution of the
judgment without requiring a supersedeas bond where Robertson-Cheatham
produced no evidence that it would be able to pay the judgment following appeal?

                      STATEMENT OF THE CASE
     This is an appeal from an order of the district court granting Robertson-
Cheatham a stay of execution of the judgment pending appeal without requiring the
posting of a supersedeas bond.
                    A.  Course of Proceedings
     The EEOC filed an enforcement action under the Age Discrimination in
Employment Act on March 29, 2001.  (R. 1, Complaint, App. at 12.)  Following
trial, a jury awarded the EEOC $37,043.36 in backpay.  (R. 103, Verdict.)  The
district court entered judgment on the jury's award, (R. 104, Judgment, App. at
18), and it denied Robertson-Cheatham's post-trial motions for judgment as a
matter of law, new trial, and remittitur.  (R. 116, Order.)  The district court
awarded the EEOC $3,890.52 in costs.  (R. 114, Costs, App. at 23.)  Robertson-
Cheatham filed a timely notice of appeal, (R. 117, Notice of Appeal, App. at 37),
and its appeal on the merits is pending.  EEOC v. Robertson Cheatham Farmers
Coop., No. 03-6338 (6th Cir.).
     Robertson-Cheatham moved under Rule 62(d) of the Federal Rules of Civil
Procedure to stay the execution of judgment pending appeal.  (R. 119, Motion,
App. at 38.)  The EEOC opposed this motion.  (R. 120, Response.)  On October 17,
2003, the district court granted the stay of execution of judgment without requiring 
Robertson-Cheatham to post a supersedeas bond. (R. 124, Order, App. at 44.)  The 
EEOC filed the instant appeal.  (R.126, Notice of Appeal, App. at 45.)
                      B.  Statement of Facts
     The EEOC obtained a judgment of $37,043.36 in an age discrimination
lawsuit against Robertson-Cheatham, plus $3,890.52 in costs.  (R.104, Judgment,
App. at 18; R.114, Costs, App. at 23.)  When it filed its notice of appeal on the
merits, (R. 117, Notice of Appeal, App.  at 37), Robertson-Cheatham also moved
for a stay of execution of judgment pending appeal.  (R. 119, Motion, App. at 38.) 
The EEOC opposed this motion.  (R.120, Response.)  Robertson-Cheatham had
stressed at trial that it is only a small farmers' cooperative, that it had lost
 its major client, and that it had needed to reduce staff.  (Robertson-Cheatham's
 Opening Arg., Tr. Vol. I at 35, App. at 46.)  Outside the presence of the jury, 
Robertson-Cheatham had put its financial health into question.  (Bench Conf., Tr. 
Vol. II at 2-3, App. at 47-48.)  While conceding that it had assets which could be
 sold, Robertson-Cheatham had told the Court nothing about the value of its assets
or the extent of its liabilities.  (Bench Conf., Tr. Vol. III at 194, 201-02, App.
 at 49-51.) 
The EEOC argued that Robertson-Cheatham should not obtain a stay of execution
of judgment because it had not shown that it has adequate resources to pay the
judgment, costs, and interest after appeal, and had neither filed nor indicated an
intent to file a supersedeas bond.  (R. 120, Response at 1-2.)
     In response to the EEOC, Robertson-Cheatham filed an unsworn letter from
its insurance carrier stating that it had a $100,000.00 policy covering the age
discrimination lawsuit, of which Robertson-Cheatham was required to pay the first
$15,000.00.  Of the remaining $85,000.00, the carrier had already paid $43,296.78
for legal services.  (R. 121, Notice, App. at 39.)  The balance of the coverage, as 
of August 2003, was $41,703.22.  Robertson-Cheatham asserted that because this
amount was "in excess of the judgment and award of discretionary costs, . . . the
judgment and discretionary costs are fully indemnified."  (Id.)
     The EEOC disagreed with this assessment, arguing that the $41,703.22
remaining on the insurance policy was insufficient to cover the $37,043.36
judgment, $3,890.52 costs, and accruing interest.  (R. 122, Response at 1.)  The
judgment and costs alone amount to $40,933.88, leaving only $769.34 in the
policy.  Noting that Robertson-Cheatham's trial expenses had been paid from the
insurance policy, and that Robertson-Cheatham had not indicated that appellate
expenses would come from a different source, the EEOC argued that the costs of
appeal would diminish the insurance coverage available to satisfy the judgment. 
Accordingly, the EEOC argued, Robertson-Cheatham should post a supersedeas
bond in order to protect the EEOC's interests.  (Id. at 2-3.)
     Robertson-Cheatham responded to this argument by filing an unsworn letter
from its general manager claiming that it would assume responsibility for any
amount due in this case above the $41,703.22 remaining in the insurance policy. 
(R. 123, Notice, App. at 42.)  Robertson-Cheatham offered no evidence of its
financial ability to pay.  Its letter stated in full:
          According to our records, funds remaining available for damages in
     the age discrimination case from Agricultural Risk Insurance Company are
     $41,703.22.  Beyond this total, Robertson Cheatham Farmers Cooperative
     assumes the responsibility once again.

          Rest assured that Robertson Cheatham Farmers Cooperative has every
     intent to pay any debt in a timely fashion.  We will pay for any damages
     beyond the above mentioned dollar amount warranted after the appeals
     process is exhausted.

(Id. at 43.)
                    C.  District Court Opinion
     The district court granted Robertson-Cheatham's motion to stay execution of
the judgment pending appeal.  (R. 124, Order, App. at 44.)  It did not require
Robertson-Cheatham to post a supersedeas bond.  The court's sole explanation for
its decision was as follows: "Because Defendant has provided the Court with
adequate proof of insurance and ability to pay the judgment, costs, and interest,
Defendant's Motion for Stay is GRANTED."  (Id.)

                       SUMMARY OF ARGUMENT
     The district court abused its discretion in departing from the ordinary rule
requiring the posting of a supersedeas bond in order to stay the execution of
judgment pending appeal.  The Federal Rules of Civil Procedure require the district
 court to protect the judgment creditor's interests before issuing a stay.  In rare
 circumstances, including when the judgment debtor proves that it has sufficient 
assets such that payment is assured and the cost of a bond would be a waste of money,
 the district court may waive the bond requirement.  Here, however, no special 
circumstances justify such a waiver.  
     Robertson-Cheatham provided no proof of its ability to pay the judgment
following appeal.  Although it presented evidence of $41,703.22 remaining in an
insurance policy, it showed that it had used the policy to pay legal expenses at 
trial and did not preclude the possibility of using the remaining funds to pay legal
 expenses on appeal.  Robertson-Cheatham introduced no financial statements or other
 evidence of ability to pay debts exceeding its insurance coverage.  To the contrary,
 it suggested that its finances were weak.  The district court was
apparently swayed by a letter from the company's general manager saying that
Robertson-Cheatham "has every intent to pay any debt in a timely fashion." 
Robertson-Cheatham's good intentions, however, are not the guarantee of security
that the Federal Rules require.

                             ARGUMENT
                      A.  Standard of Review
     This Court reviews a district court's decision not to require the posting of a 
supersedeas bond for abuse of discretion.  See Arban v. W. Publ'g Corp., 345 F.3d 390, 
409 (6th Cir. 2003).
          B.   Because Robertson-Cheatham Has Provided No
               Evidence That It Will Be Able to Satisfy the
               Judgment Against It Following Appeal, the
               District Court Abused Its Discretion By Staying
               Execution of the Judgment Without Requiring
               Robertson-Cheatham to Post a Supersedeas Bond.

     The purpose of a supersedeas bond is to protect the appellee from the
possibility that the appellant will be unable to satisfy the judgment after the appeal. 
See Miami Int'l Realty Co., 807 F.2d at 873; Lightfoot v. Walker, 797 F.2d 505,
506-07 (7th Cir. 1986); Fed. Prescription Serv., Inc. v. Am. Pharm. Ass'n, 636 F.2d 755, 
760 (D.C. Cir. 1980).  Posting a bond in lieu of immediate payment also
protects the appellant, who might find that restitution is impossible following
reversal on appeal.  See Poplar Grove Planting & Ref. Co., 600 F.2d at 1191.  An
appellant who posts a supersedeas bond is automatically entitled to a stay of
execution of judgment pending appeal.  See Fed. R. Civ. P. 62(d).  
     Courts have interpreted Rule 62(d) also to authorize discretionary stays
without a bond.  See Arban, 345 F.3d at 409; Olympia Equip. Leasing Co., 786
F.2d at 796.  Such stays, however, are the exception to the general rule.  See Miami 
Int'l Realty Co., 807 F.2d at 873 ("a full supersedeas bond should be the
requirement in normal circumstances").  The Supreme Court has noted that the
Federal Rules of Civil Procedure "require the district court to ensure that the
judgment creditor's position is secured, ordinarily by a supersedeas bond." 
Peacock v. Thomas, 516 U.S. 349, 359 (1996).  Waiver of a bond, therefore, "is
appropriate only if the appellant has a clearly demonstrated ability to satisfy the
 judgment in the event the appeal is unsuccessful and there is no other concern that 
the appellee's rights will be compromised by a failure adequately to secure the
 judgment."  In re Carlson, 224 F.3d 716, 719 (7th Cir. 2000).
     In setting the amount of a supersedeas bond, if any, "'courts seek to protect
judgment creditors as fully as possible without irreparably injuring judgment
debtors.'"  Miami Int'l Realty Co., 807 F.2d at 873 (citation omitted).  Thus, a
court may consider five factors in determining whether to waive a bond.  Those
factors are: "(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 [appellant'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 [appellant] 
is in such a precarious financial situation that the requirement to post a bond would 
place other creditors of the [appellant] in an insecure position."  Dillon v. City of 
Chicago, 866 F.2d 902, 904-05 (7th Cir. 1989) (citations omitted); see also Arban, 345
 F.3d at 409 (relying on fourth factor of this test).  The district court in this case 
appears to have relied on the third factor, stating that Robertson-Cheatham had provided 
it with "adequate proof of insurance and ability to pay the judgment, costs, and interest." 
 (R. 124, Order, App. at 44.)
     The district court was wrong in concluding that Robertson-Cheatham had
provided it with adequate proof of its ability to pay.  In seeking an exception to the
 normal rule requiring a supersedeas bond, Robertson-Cheatham had the burden of
"objectively demonstrat[ing]" that a bond was unnecessary.  Poplar Grove Planting
& Ref. Co., 600 F.2d at 1191.  Debtors have successfully met this burden by
providing evidence of their financial status.  See Arban, 345 F.3d at 409 (no bond
required "in light of the vast disparity between the amount of the judgment in this
 case [$119,000] and the annual revenue of the group of which West is a part [$2.5 
billion]"); Fed. Presciption Serv., 636 F.2d at 761 (no bond required where
debtor's "documented net worth" was 47 times the amount of the damage award). 
Where debtors do not provide such evidence, however, the normal rule requiring a
supersedeas bond remains in force.  See Poplar Grove Planting & Ref. Co., 600
F.2d at 1191 (where record contained no evidence to show that debtor could
respond to the judgment now or in the future, district court erred by waiving the
full bond requirement).
     Like the debtor in Poplar Grove Planting & Refining Co., Robertson-
Cheatham has not met its burden.  To the contrary, it has offered no evidence at all
 of its financial status.  The district court's confidence in Robertson-Cheatham's
 ability to pay rests solely on an unsworn letter from its insurance carrier saying 
that it had $41,703.22 in remaining coverage as of August 2003, and an unsworn letter
 from Robertson-Cheatham saying that it intends to pay any additional amount due in
 the case.  Robertson-Cheatham has offered no assurance, let alone any supporting 
evidence, that funds currently exist and will exist in the future to pay such a debt.
  Thus, Robertson-Cheatham is not in the same position as the debtor in Arban, in
which this Court upheld the granting of a stay without a bond to a debtor whose 
annual revenue "vast[ly]" exceeded the amount of its debt.  See Arban, 345 F.3d at 409.
     Robertson-Cheatham emphasized at trial that it is only a small farmers' co-
operative, that it has lost its major client, and that it has had to reduce its staff. 
(Robertson-Cheatham's Opening Arg., Tr. Vol. I at 35, App. at 46.)  Its attorney
even suggested that Robertson-Cheatham's tax returns would demonstrate an
inability to pay liquidated damages.  (Bench Conf., Tr. Vol. II at 2-3, App. at 47-48.
 Although the insurance policy would currently cover the judgment,
Robertson-Cheatham's ability to pay after appeal is in doubt.  It is precisely this 
uncertainty that a supersedeas bond is intended to address.  See Poplar Grove
Planting & Ref. Co., 600 F.2d at 1191 (judgment debtor seeking to be excused
from necessity of posting supersedeas bond must demonstrate either "a financially
secure plan" for paying judgment following appeal or that the posting of a bond
would impose an undue financial burden).

                            CONCLUSION
     Robertson-Cheatham has not satisfied its burden of proving that a
supersedeas bond is unnecessary to protect the EEOC's interest as a judgment
creditor.  For the reasons stated above, the EEOC respectfully requests that this
Court reverse the district court's order granting a stay of execution of the 
judgment without requiring the posting of a supersedeas bond.
                              Respectfully submitted,
                              ERIC S. DREIBAND
                              General Counsel

                              CAROLYN L. WHEELER
                              Acting Associate General Counsel



                              ___________________________
                              GAIL S. COLEMAN
                              Attorney
                              EQUAL EMPLOYMENT OPPORTUNITY
                                 COMMISSION
                              Office of General Counsel
                              1801 L Street, N.W., Room 7034
                              Washington, D.C. 20507
                              (202) 663-4055

April 21, 2004

                              
                             ADDENDUM


                 DESIGNATION OF APPENDIX CONTENTS

     Appellant, pursuant to Sixth Circuit Rule 28(d), hereby designates the
following filings in the district court's record as items to be included in the joint appendix:


Description of Item 
Date Filed in
District Court
Record Entry
Number


District Court Docket Sheet
n/a
n/a


Complaint
3/29/01
1


Judgment
7/21/03
104


Award of Costs
8/22/03
114


Robertson-Cheatham's Notice of
Appeal
9/19/03
117


Motion for Stay of Execution of
Judgment Pending Appeal
9/19/03
119


Robertson-Cheatham's Proof of
Insurance
10/7/03
121


Robertson-Cheatham's Letter of Intent
to Pay Judgment
10/14/03
123


Order Staying Execution of Judgment
Without Supersedeas Bond
10/16/03
124


EEOC's Notice of Appeal
11/21/03
126
Description of Proceeding

Date Filed in
District Court
Transcript Page
Numbers


Trial held 7/15/03-7/18/03

   Robertson- Cheatham's Opening Argument

   Bench Conference 7/16/03

   Bench Conference 7/17/03


1/6/04


7/25/03

1/6/04


Vol. I at 35


Vol. II at 2-3

Vol. III at 194,
201-02



                      CERTIFICATE OF SERVICE

     I hereby declare that I filed the original plus six copies of the foregoing,
signed brief with the Court this 21st day of April, 2004, by first-class mail,
 postage pre-paid.  I further declare that I served two copies of the foregoing
 brief this 21st day of April, 2004, by first-class mail, postage pre-paid,
to the following counsel of record:
               Charles R. Ray
               211 Third Avenue, North
               Nashville, TN 37219



                              ___________________________
                              GAIL S. COLEMAN
                              Attorney
                              EQUAL EMPLOYMENT OPPORTUNITY
                                 COMMISSION
                              Office of General Counsel
                              1801 L Street, N.W., Room 7034
                              Washington, D.C. 20507
                              (202) 663-4055


                       TABLE OF AUTHORITIES

                              Cases

Arban v. W. Publ'g Corp., 345 F.3d 390 (6th Cir. 2003) . . . 8-11

In re Carlson, 224 F.3d 716 (7th Cir. 2000)  . . . . . . . . . . . . . . 9

Dillon v. City of Chicago, 866 F.2d 902 (7th Cir. 1989)  . . . . . . . .10

EEOC v. Robertson Cheatham Farmers Coop., 
No. 03-6338 (6th Cir.) (pending) . . . . . . . . . . . . . . . .3

Fed. Prescription Serv., Inc. v. Am. Pharm. Ass'n, 
636 F.2d 755 (D.C. Cir. 1980)  . . . . . . . . . . . . . . . . . . . 8, 10

Lightfoot v. Walker, 797 F.2d 505 (7th Cir. 1986)  . . . . . . . . . . . 8

Miami Int'l Realty Co. v. Paynter, 807 F.2d 871 (10th Cir. 1986) . . . . . . 2, 8, 9

Olympia Equip. Leasing Co. v. W. Union Tel. Co., 
786 F.2d 794 (7th Cir. 1986) . . . . . . . . . . . . . . . . . . . . .2, 9

Peacock v. Thomas, 516 U.S. 349 (1996) . . . . . . . . . . . . . . . . . 9

Poplar Grove Planting & Ref. Co. v. Bache Halsey Stuart, Inc., 
600 F.2d 1189 (5th Cir. 1979)  . . . . . . . . . . . . . . . . 2, 8, 10-12

                             Statutes

28 U.S.C. 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Age Discrimination in Employment Act, 29 U.S.C. 621 et seq.  . iii, 1, 3

                              Rules

Fed. R. Civ. P. 62(d)  . . . . . . . . . . . . . . . . . . . . . . . . 8-9


Fed. R. App. P. 4(a)(1)(B) . . . . . . . . . . . . . . . . . . .2

6th Cir. R. 28(c)  . . . . . . . . . . . . . . . . . . . . . .iii