Brown v. City of Upper Arlington

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0074p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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MARK BROWN,

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Plaintiff-Appellee,

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No. 09-4396

v.

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Defendant-Appellant. -

CITY OF UPPER ARLINGTON,

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Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 08-00849—Norah McCann King, Magistrate Judge.

Argued: January 19, 2011

Decided and Filed: March 25, 2011

Before: BATCHELDER, Chief Judge; MARTIN and SUTTON, Circuit Judges.

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COUNSEL

ARGUED: Brandi L. Dorgan, ISAAC, BRANT, LEDMAN & TEETOR, LLP,

Columbus, Ohio, for Appellant. Mark G. Kafantaris, Columbus, Ohio, for Appellee.

ON BRIEF: Brandi L. Dorgan, Mark D. Landes, ISAAC, BRANT, LEDMAN &

TEETOR, LLP, Columbus, Ohio, Jeanine A. Hummer, Thomas K. Lindsey, CITY OF

UPPER ARLINGTON, Upper Arlington, Ohio, for Appellant. Mark G. Kafantaris,

Columbus, Ohio, for Appellee.

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OPINION

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SUTTON, Circuit Judge. A tree once grew in Upper Arlington. When the City

decided to cut it down, the adjacent homeowner protested. First in front of the City’s

Tree Commission, then in state court, ultimately in federal court, the parties vied over

the propriety of removing the tree and eventually over whether the courts should enjoin

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the City from moving ahead with its plans. Soon after the federal district court ruled in

favor of the City, a group of City employees, over the protest of the homeowner,

removed the 40-year-old tree. The homeowner was not pleased, having lost not just the

tree but the basis for any further litigation as well. The district court was none too happy

either, and it sanctioned the City for contempt of court.

Although we appreciate the district court’s frustrations with the City’s conduct,

we see no basis for using the contempt power to deal with the problem. The federal

courts’ traditional contempt power does not apply because the City did not violate any

order: No formal injunction existed, whether before the court’s decision or after it; the

informal agreement between the parties and the court to hold off on the tree cutting

ended with the court’s decision rejecting Brown’s claim; and the Federal Rules of Civil

Procedure do not automatically stay this kind of judgment, see Fed. R. Civ. P. 62(a), (c).

The federal courts’ “inherent” contempt power does not apply either: Brown did not

seek a stay pending appeal, and at most signaled a desire to refile his state law claim in

state court, which would give the state courts, not the federal courts, the inherent power

to protect their jurisdiction. We vacate the decision and remand the case to the district

court.

I.

In front of Mark Brown’s house, next to a public street, once stood a 40-year-old

sweet gum tree planted by the City of Upper Arlington, a suburb of Columbus, Ohio,

that 34,000 people call home. See City of Upper Arlington, About UA,

http://www.uach.net (last visited Mar. 23, 2011). The tree was on City property.

In April 2008, Steven Cothrel, the Superintendent of the City’s Parks and

Forestry department, told Brown that the tree was decayed and dying, that the City

planned to remove the tree as a result and that it would replace the old tree with a new

one. Brown responded that the tree was “quite healthy” and asked for a hearing to

contest the tree’s removal. R.11-1.

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Brown appeared twice before an entity known as the Upper Arlington Tree

Commission, the modest jurisdiction of which extends to making non-binding

recommendations to the City about arboreal matters. In each instance, Brown claimed

that the tree was just fine and that the City had no basis for taking it down. In August,

the Commission denied Brown’s appeal, after which Cothrel wrote Brown a letter saying

the City would remove the tree.

Brown wrote back, accusing Cothrel of “transcend[ing] the bounds of decency

and professionalism” and of coming up with pretextual reasons for cutting down the tree.

R.11-3 at 1. Cothrel “made a mistake,” the letter continued, when he first decided to

remove the tree, and he was “not professional enough to admit it.” Id. Brown concluded

by asking the City not to remove the tree while he considered filing a lawsuit. The City

obliged, for then.

On September 2, 2008, Brown filed a complaint in state court, claiming that the

tree cutting would violate his rights under the substantive due process and equal

protection guarantees of the Fourteenth Amendment and under a city ordinance. He

asked for a temporary restraining order, which the state court granted. On September

10, the City removed the action to federal court based on federal-question jurisdiction.

The parties consented to disposition by a magistrate judge, who held an

evidentiary hearing on September 24. Noting that the state court’s temporary restraining

order had expired, the court told the parties that “I would expect that between now and

the time the Court issues its decision, . . . if the city undertakes or concludes that it

intends to take action, I would expect the city to notify plaintiff’s counsel and the Court

immediately.” R.34 at 116. The City agreed.

In an opinion dated October 28, a Tuesday, the court rejected Brown’s federal

claim on the merits and opted not to resolve the state claim. The court also rejected

Brown’s request for a preliminary injunction. The next day, the court entered a final

judgment dismissing the case. That same day, October 29, Brown’s lawyer spoke to the

City’s outside counsel and told her that Brown would refile his complaint in state court

no later than Friday, October 31.

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At around 9:00 a.m. the next morning, Thursday, October 30, Cothrel arrived at

Brown’s house with an entourage of 10 or so, including a police officer in a cruiser and

a city worker driving a “cherry-picker.” R.22-2 at 2. Cothrel told Brown that the City

Attorney, Jeanine Hummer, had authorized him to cut down the tree. Brown and his

attorney tried to reach Hummer and the City’s outside counsel to stop the removal, but

they got nowhere. Despite Brown’s protests—he told Cothrel that removing the tree

“constituted a criminal contempt of court” and was an “obstruction of justice”—the city

workers cut the tree to a stump. Id. at 3. The record does not reveal whether the City,

as promised, planted a new tree and if so what kind of tree it is.

Brown moved for reconsideration in the district court and for a finding that the

City was in contempt of court. The court denied the motion for reconsideration.

Invoking its “inherent power,” the court granted the contempt motion, finding that the

City “intentionally destroyed the Tree the preservation of which was the subject of the

litigation,” and that the “City’s actions foreclose to plaintiff the possibility of meaningful

review by either this Court [or] the Court of Appeals of the judgment . . . or pursuit in

any meaningful fashion of the state court claim preserved to plaintiff by this Court’s

judgment.” R.31 at 9. The court ordered the City to replace the tree with “one of

comparable genus” and to pay the attorney’s fees incurred by Brown in filing the

contempt motion. Id. at 10. The City appealed.

II.

The easy part of this appeal is appreciating the district court’s frustration with the

City’s sharp-elbowed conduct. The case was coming to an end, and Brown already had

been given considerable process over an uphill set of claims: (1) a purported right under

the Fourteenth Amendment to prevent a city from cutting down its own tree; and (2) a

purported right under local law to prevent a city from cutting down a 40-year-old tree

that its experts thought “was going to imminently fall on some child walking to the

nearby school.” R.34 at 34. A stay pending appeal thus seemed doubtful in the federal

case, and in light of the federal court ruling it seems equally doubtful that the threatened

refiling in state court would lead to a preliminary injunction. Had the City honored

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Brown’s request to wait even a few days more, a not-unreasonable request in view of the

month and a half the parties already had waited for resolution of the federal case, it

seems likely that the case, if not the tree, soon would have come to a natural end.

Why the City and its outside counsel did what they did is hard to justify, as the

district court understandably concluded. What to do about it is another matter.

Federal courts have broad contempt power, which exists for the “preservation of

order in judicial proceedings, and to the enforcement of the judgments, orders, and writs

of the courts.” Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 798 (1987)

(internal quotation marks and citation omitted). One of the “underlying concern[s] that

gave rise to the contempt power,” and the most salient reason for invoking it, is the

“disobedience to the orders of the Judiciary.” Id. No one thus doubts that a court may

punish parties for “willful disobedience of a court order.” Roadway Express, Inc. v.

Piper, 447 U.S. 752, 766 (1980) (contempt power used to dismiss case based on

plaintiffs’ refusal to answer defendant’s interrogatories) (internal quotation marks

omitted); see also Young, 481 U.S. at 789–90 (contempt power used to punish violation

of a permanent injunction). And that is true even if the conduct occurs outside the

proceedings at hand, see Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991), and even

if the court issued the underlying order in error, see United States v. United Mine

Workers of Am., 330 U.S. 258, 294 (1947) (“Violations of an order are punishable as

criminal contempt even though the order is set aside on appeal, or though the basic

action has become moot.”); cf. Willy v. Coastal Corp., 503 U.S. 131, 139 (1992) (Rule

11 sanctions allowed even when court lacked subject-matter jurisdiction over the

underlying case).

These classic formulations of the contempt power do not help Brown. The City

did not violate any court orders, formal or informal, when it cut the tree down. The

federal court never entered a temporary restraining order, and its October 28th decision

rejected Brown’s motion for a preliminary injunction at the same time it dismissed his

case as a matter of law. On October 30th, there was no court order that the City could

have violated. By the time the federal proceeding started, moreover, the state court’s

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temporary restraining order had expired by its terms. Appreciating this reality, the

federal judge told the parties soon after the removal of the case to federal court that “I

would expect that between now and the time the Court issues its decision, . . . if the city

undertakes or concludes that it intends to take action, I would expect the city to notify

plaintiff’s counsel and the Court immediately.” R.34 at 116. The City agreed to comply

with this informal arrangement, and, literally speaking, it did. When the City felled the

tree, it was not acting “between now and the time the Court issues its decision,” id., as

the court had signed its merits decision two days before and entered its final judgment

one day before.

Brown to his credit appreciates that none of these conventional grounds for

issuing a contempt sanction applies. He instead invokes the federal courts’ “inherent

power” to sanction the parties and lawyers in front of it, relying on Chambers v. NASCO,

Inc. In Chambers, the plaintiff gave formal notice under Civil Rule 65 that it would seek

a temporary restraining order against the defendant to prevent the transfer of certain

property. 501 U.S. at 36. Before the complaint was filed, the defendant tried to dispose

of the property, and, when the litigation began, the defendant filed “a series of meritless

motions and pleadings” and obstructed the lawsuit through other “delaying actions.” Id.

at 38 (internal quotation marks omitted). The Supreme Court affirmed an award of

sanctions based on the defendant’s attempt to deprive the court of jurisdiction through

fraud and other “tactics of delay, oppression, harassment and massive expense,” id. at

41 (internal quotation marks omitted), even though some of the bad conduct had

occurred before any litigation had started (but after the plaintiff had given notice of the

lawsuit), see id. at 54 n.17.

Chambers, it is true, establishes that the federal courts have limited inherent

power to protect their jurisdiction through sanctions. But it is at least one step removed

from the sanction imposed here. After the district court announced its decision, Brown

told the City that he planned to refile the action in state court. On this record, to the

extent the City’s actions were designed to deprive a court of jurisdiction, it was the state

courts’ jurisdiction that the City’s action undercut. Had Brown refiled the state law

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claim in state court, Chambers at most might have suggested that a sanctions motion

under state law would be appropriate, see Stancourt v. Worthington City Sch. Dist. Bd.

of Educ., 841 N.E.2d 812, 830 (Ohio Ct. App. 2005), on the ground that the City

prevented the state courts from exercising jurisdiction over the claim he told the City he

was about to file, cf. Porter v. Lee, 328 U.S. 246, 251 (1946) (“[W]here a defendant with

notice in an injunction proceeding completes the acts sought to be enjoined the court

may by mandatory injunction restore the status quo.”). This is not what happened,

however. Even had Brown followed through on the plan to refile in state court, that at

most would have empowered the state courts, not the federal courts, to sanction the

City’s conduct. A federal court’s inherent power concerns efforts to “manage [its] own

affairs,” not the affairs of another sovereign’s court. Children’s Ctr. for Developmental

Enrichment v. Machle, 612 F.3d 518, 524 (6th Cir. 2010) (alteration and emphasis in

original) (internal quotations omitted).

The question here relates not only to alleged misconduct with respect to another

court’s jurisdiction but also to conduct that occurred after the federal court dismissed the

case. Kokkonen v. Guardian Life Insurance Company of America, 511 U.S. 375 (1994),

shows that the federal court’s inherent authority to continue to exercise jurisdiction over

parties once before it is finite. In Kokkonen, one month after the district court dismissed

a case in connection with a settlement between the parties, a party asked the district court

to enforce a provision of the settlement. The district court agreed to do so, invoking its

“inherent power.” Id. at 377. The Supreme Court reversed, holding that the court lacked

jurisdiction because the “power asked for here is quite remote from what courts require

in order to perform their functions.” Id. at 380.

As in Kokkonen, a federal court’s unspoken authority to “manage its proceedings,

vindicate its authority, and effectuate its decrees,” id. at 379–80, remains limited—and

here does not include the power to punish conduct that did not violate any court order,

that occurred after the dismissal of the case and that occurred after the allegedly injured

party signaled it would return to state court, not federal court. Once the district court

dismissed Brown’s request for an injunction and once it dismissed all of the claims, as

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opposed to remanding the state law claims to state court, see Carnegie-Mellon Univ. v.

Cohill, 484 U.S. 343, 351–52 (1988), there was no reason in law that the City could not

act. And given the reality that the parties were fighting over the public-safety risks

presented by a dying tree, there was some reason to think the City might act. In the

absence of a court order, a party is not obligated by law, as opposed to the customs of

trust in the local bar, to comply with an invisible stay.

The Federal Rules of Civil Procedure, indeed, make it clear that no automatic

stay applies to such orders. While Civil Rule 62(a) provides an automatic 14-day stay

before a party may execute a judgment, it conspicuously excludes a “final judgment in

an action for an injunction” from this requirement. There thus “is no automatic stay in

actions for injunctions.” Charles Alan Wright et al., Federal Practice and Procedure,

§ 2904. Injunctions are “drastic and extraordinary” orders which “should not be granted

as a matter of course,” Monsanto Co. v. Geertson Seed Farms, __ U.S. __, 130 S. Ct.

2743, 2761 (2010), and accordingly the failure to obtain one does not automatically lead

to a temporary injunction. Even had Brown filed, or given notice he would file, a post-

judgment motion or an appeal, that might have changed the nature of this dispute, but

it would not have entitled him to an automatic stay. See Hovey v. McDonald, 109 U.S.

150, 161 (1883) (“[A]n appeal from a decree granting, refusing, or dissolving an

injunction does not disturb its operative effect.”); Deering Milliken, Inc. v. F.T.C., 647

F.2d 1124, 1129 (D.C. Cir. 1978) (“[T]he vitality of [the district court’s] judgment is

undiminished by pendancy of the appeal. Unless a stay is granted either by the court

rendering the judgment or by the court to which the appeal is taken, the judgment

remains operative.”).

The traditional way to obtain a stay after the dismissal of a request for an

injunction is under Civil Rule 62(c), which allows a court to “suspend, modify, restore,

or grant” an injunction pending appeal. Once the district court dismissed Brown’s case

without granting a stay under Civil Rule 62(c), however, the City was “free to take the

action sought to be enjoined,” Wright et al., § 2904—namely, to cut down the tree. See

Air Line Pilots Ass’n, Int’l v. United Air Lines, Inc., 853 F.2d 528, 529 (7th Cir. 1988)

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(per curiam) (once an injunction was found inapplicable to plaintiffs, “no civil contempt

for violating that injunction could stand”); Dakota Corp. v. Slope Cnty., 75 F.2d 584,

586 (8th Cir. 1935) (holding that defendant’s act of selling property after the lower court

had denied a temporary injunction was “advisedly done” and did not constitute

contempt); see also MacMann v. Titus, 819 F.2d 8, 9 (1st Cir. 1987) (sale of property

that plaintiff had sought to obtain via an injunction was a “permissible action in the

absence of a stay order secured under [Civil Rule] 62”).

That is not all. Courts may issue injunctions “only if the movant gives security.”

Fed. R. Civ. P. 65(c). The rule protects the enjoined party from any “pecuniary injury

that may accrue [while] a wrongfully issued equitable order remains in effect,” Wright

et al., § 2954, and requires a court to “consider[] the question of requiring a bond” before

it issues an injunction, Roth v. Bank of the Commonwealth, 583 F.2d 527, 539 (6th Cir.

1978). That was no small matter here, as the City had found that the tree raised a serious

risk of injury to passers-by and thus of potential liability to the City. As these provisions

confirm, an automatic stay did not spring into existence upon the issuance of the court’s

ruling, and it is by no means certain that a request for a stay pending appeal (had one

been sought) would have been granted.

Merrimack River Savings Bank v. City of Clay Center, 219 U.S. 527 (1911), does

not change matters. In Merrimack, a plaintiff filed a lawsuit against a power company

in federal court and obtained a temporary injunction to prevent the destruction of power

lines and poles over which the plaintiff had security rights. Id. at 532–33. The lower

court dismissed the case for want of jurisdiction, and the plaintiff appealed the case to

the Supreme Court, during which time the lower court injunction remained in place. Id.

at 533. After a hearing, the Court issued an order dismissing the appeal. Id. Before the

plaintiff had a chance to petition for rehearing, the power company cut down the power

lines. Id. The Court found the power company in “contempt of the appellate jurisdiction

of this court.” Id. at 535–36.

In contrast to this case, Merrimack relied on the presence of a continuing lower

court injunction, which the Court held is “neither suspended nor annulled as a mere

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consequence of an appeal to [the Supreme Court].” Id. at 534; see also Dakota Corp.,

75 F.2d at 586 (distinguishing Merrimack on these grounds). At most, Merrimack stands

for the proposition that one court can sanction a party for failing to abide by another’s

court’s continuing injunction. No such order existed here, whether trial or appellate,

whether state or federal, which is why we agree with the district court that Merrimack

turns on the violation of an existing injunction, not on the federal courts’ inherent

authority.

In the final analysis, it may well be true that the City did not play by the

Marquess of Queensberry rules. And one day it may happen that the City will be on the

receiving end of comparable conduct. Still, this reality remains: The City did not

violate any existing order of the federal court, the traditional ground for invoking the

contempt power. While Brown signaled, after the district court’s ruling, that he would

pursue his state court claim in state court, that did not permit the federal court to invoke

its inherent sanction authority. “[C]ourts have finite bounds of authority, . . . which exist

to protect citizens from . . . the excessive use of judicial power.” U.S. Catholic

Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 77 (1988). Because a

federal court’s inherent powers carry great “potency,” they must be exercised with

“restraint and discretion,” Chambers, 501 U.S. at 44, and we see no cognizable basis for

invoking them here.

III.

For these reasons, we vacate and remand.