Petition for Writ of Certiorari — Gerard A. Sheridan, Petitioner v. Manuel de Jesus Ortega Melendres, et al.

Supreme Court briefJan 22, 2018

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No. ________

In The

Supreme Court of the United States

GERARD A. SHERIDAN,

Petitioner,

MANUEL DE JESUS ORTEGA MELENDRES,

on behalf of himself and all other

similarly situated, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

DENNIS I. WILENCHIK

Counsel of Record

JOHN D. WILENCHIK

BROCK D. KAMINSKI

WILENCHIK & BARTNESS, P.C.

2810 N. Third St.

Phoenix, AZ 85004

(602) 606-2810

jackw@wb-law.com

Counsel for Petitioner

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

QUESTIONS PRESENTED

Gerard A. Sheridan is the former Chief Deputy of

the Maricopa County Sheriffs Office, who was found

in civil contempt of a district court's preliminary

injunction order after he voluntarily agreed the order

had been violated, although not intentionally. The

district court's subsequent actions related to the

contempt, however, have directly and continuously

damaged Sheridan. In an attempt to vacate those

actions and clear his name, Sheridan challenged the

district court's findings of contempt on appeal. After

filing his appeal, however, Sheridan retired from the

MCSO, which the Ninth Circuit found dispositive

with respect to Article III standing. As such, the

Ninth Circuit erroneously dismissed the appeal as

moot and found Sheridan liable for Plaintiffs' attorneys' fees on appeal pursuant to 42 U.S.C. § 1988(b).

The questions presented are:

Whether direct, unretracted government action

that continuously harms a litigant's reputation

constitutes a sufficient injury-in-fact so as to afford a

court Article III jurisdiction and save a case from

mootness.

2. Whether 42 U.S.C. § 1988(b) creates fee liability

on appeal against a non-party civil contemnor who

faced no personal liability on the merits of plaintiffs'

underlying federal civil rights claims, but whose

appeal of the district court's finding of civil contempt

against him is dismissed for lack of standing.

PARTIES

Petitioner Gerard A. Sheridan was a NonpartyAppellant in the court of appeals below.

Respondents Manuel De Jesus Ortega Melendres,

Jessica Quitugua Rodriguez, David Rodriguez, Velia

Meraz, Manuel Nieto, Jr., on behalf of themselves

and all others similarly situated, and Somos America

were Plaintiffs-Appellees in the court of appeals

below.

Respondent United States was an IntervenorPlaintiff-Appellee in the court of appeals below.

Sheriff Joseph M. Arpaio of the Maricopa County

Sheriffs Office was a Defendant in the court of

appeals below, but his successor-in-office, Paul

Penzone, withdrew from the appeal and was dismissed on April 26, 2017. As the Sheriff was sued

only in his official capacity, his withdrawal from the

appeal was a withdrawal of the Maricopa County

Sheriffs Office, which was a defendant in the district

court proceedings, from the appeal as well.

Lieutenant Joseph Sousa of the Maricopa County

Sheriffs Office was a Nonparty-Appellant in the

court of appeals below, but withdrew from the appeal

and was dismissed on May 25, 2017.

111

TABLE OF CONTENTS

QUESTIONS PRESENTED ...................................... i

PARTIES .................................................................. .ii

TABLE OF CONTENTS ........................................ .iii

TABLE OF AUTHORITIES .................................... vi

PETITION FOR A WRIT OF CERTIORARI.. ......... 1

OPINIONS BELOW ................................................. 1

JURISDICTION ....................................................... 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ................................. 2

INTRODUCTION ..................................................... 2

STATEMENT ........................................................... 4

A. Factual Background and District Court

Proceedings .......................................................... 4

B. Sheriff Arpaio's Criminal Trial and

President Trump's Pardon .................................. 6

C. The Court of Appeal's Decisions ......................... 6

REASONS FOR GRANTING THE

PETITION ......................................................... 10

A. The Court Should Grant Review In Order

To Settle The Dispute Between The

Circuits Concerning The Effect Of A

Reputational Injury On The Article III

Analysis ............................................................. 10

1. The Courts Of Appeals Are Divided

Over Whether A Reputational Injury

Is Sufficient For Purposes Of Article

III To Present A Live Controversy

And Avoid Mootness .................................... 13

2. The Ninth Circuit's Determination

That Mootness Cannot Be Overcome

By Reputational Harm Not Only

Conflicts From The Reasoned

Approach Adopted By Its Sister

Circuits, But Departs With This

Court's Well-Established Holdings ............. 21

3. This Case Cleanly Presents An

Opportunity For The Court To Resolve

The Dispute Concerning The Effect

Of A Reputational Injury On The

Article III Analysis ...................................... 24

B. The Court Should Grant Review In Order

To Settle The Dispute Between The

Circuits Concerning The Limits Of Fee

Liability Under 42 U.S.C. § 1988 ..................... 26

1. The Courts of Appeals are Divided

Over the Scope of 42 U.S.C. § 1988(b)

Fee Liability ................................................. 28

2. This Case Cleanly Presents The Court

With An Opportunity To Protect NonParty, Government Employees From

The Burden Of Fee Shifting Statutes

And Eliminate Forum Shopping In

Civil Rights Cases ........................................ 32

CONCLUSION ....................................................... 35

Appendix:

Appendix A

January 4, 2017 Order From Ninth Circuit

Regarding Attorneys' Fees Docket 70 .................. la

AppendixB

August 3, 2017 Order From Ninth Circuit

Dismissing Sheridan's Appeal as Moot

Docket 57 .............................................................. 6a

Appendix C

October 24-2017 Order From Ninth Circuit

Denying Sheridan's Petition for Panel

Rehearing Docket 65 ........................................... lOa

AppendixD

42 U.S.C. § 1988(b) .............................................. 12a

AppendixE

September 18, 2017 Declaration of Gerard A.

Sheridan, attached at Exhibit A to Petition

for Panel Rehearing Docket 58 .......................... 13a

TABLE OF AUTHORITIES

Cases

Campbell-Ewald Co. v. Gomez,

136 S.Ct. 663 (2016) ......................................... 10

Charles v. Daley,

846 F.2d 1057 (7th Cir. 1988) ......................... 29

Danos v. Jones,

652 F.3d 577 (5th Cir. 2011) ............................ 19

Foretich v. United States,

351 F.3d 1198 (D.C. Cir. 2003) ............... passim

Gully v. Nat'l Credit Union Admin. Bd.,

341 F.3d 155 (2d Cir. 2003) ........................ 17, 22

Hensley v. Eckerhart,

461 u.s. 424 (1983) ........................................... 32

Hong Kong Entm't (Overseas) Investments Ltd. v.

United States Citizenship & Immigration Servs.,

No. 1:16-CV-00009, 2017 WL 4369475

(D. N. Mar. I. Oct. 1, 2017) .............................. 20

In re Crescent City Estates, LLC,

588 F.3d 822 (4th Cir. 2009) ............................ 31

Indep. Fed'n of Flight Attendants v. Zipes,

491 u.s. 754 (1989) .......................................... 26

Jackson v. Cal. Dep't of Mental Health,

399 F.3d 1069 (9th Cir. 2005) .................. passim

Vll

Johnson v. City of Aiken,

278 F.3d 333 (4th Cir. 2002) .................... passim

Kendall v. Russell,

No. CIV. 2007-126, 2008 WL 219762

(D.V.I. Jan. 16, 2008) ...................................... 20

Kentucky v. Graham,

473 U.S. 159 (1985) ................................. passim

Lebron v. Rumsfeld,

670 F.3d 540 (4th Cir. 2012) ............................ 18

McBryde v. Comm. to Review Circuit Council

Conduct & Disability Orders of Judicial

Conference of U.S.,

264 F.3d 52 (D.C. Cir. 2001) .................... passim

Meese v. Keene,

481 U.S. 465 (1987) ······················~······ .. ·· passim

Melendres v. Arpaio,

784 F.3d 1254 (9th Cir. 2015) ............................ 7

Melendrez v. Maricopa Cty,

No. 16-16663,2018 WL 280907

(9th Cir. Jan. 4, 2018) ....................................... 1

Mosely v. City of Chicago,

52 F.R.D. 421 (N.D. Ill.), order vacated in

part on reconsideration sub nom.

Mosley v. City of Chicago,

252 F.R.D. 445 (N.D. Ill. 2008) ........................ 26

Vlll

Parsons v. Dept. of Justice,

801 F.3d 701 (6th Cir. 2015) ........................... 17

Pearl River Union Free Sch. Dist. v. Duncan,

56 F. Supp. 3d 339 (S.D.N.Y. 2014) ................. 20

Portland Feminist Women's Health Ctr. v.

Advocates for Life, Inc.,

877 F.2d 787(9th Cir. 1989) ............................ 28

Robertson v. Colvin,

564 Fed.Appx. 931 (lOth Cir. 2014) ........... 17, 22

Silicon Econ., Inc. v. Fin. Accounting Found.,

No. CIV.A. 11-163, 2011 WL 3742182

(D. Del. Aug. 18, 2011) ..................................... 20

Spencer v. Kemna,

523 u.s. 1 (1998) ............................ 12,14, 22, 23

Spokeo v. Robins,

136 S.Ct. 1540 (2016) ....................................... 23

Texas State Teachers Ass 'n v. Garland

Indep. Sch. Dist.,

489 u.s. 782 (1989) .......................................... 33

Three Affiliated Tribes of Fort Berthold

Reservation v. Wold Eng'g,

476 u.s. 877 (1986) .......................................... 12

Statutes

28 u.s.c. § 1254(1) .................................................. 1

42 U.S. C. § 1988 ............................................. passim

42 U.S.C. § 1988(b) ........................................ passim

Constitutional Provisions

U.S. Constitution art. III,§ 2 ........................ passim

PETITION FOR A WRIT OF CERTIORARI

Petitioner Gerard A. Sheridan ("Sheridan") respectfully petitions for a writ of certiorari to review

the orders of the United States Court of Appeals for

the Ninth Circuit in this case.

OPINIONS BELOW

The Order of the court of appeals dismissing

Sheridan's appeal as moot is unreported but is

available at 2017 WL 4315029. App., 6a. The Order

of the court of appeals denying Sheridan's petition

for panel rehearing is unreported but can be found at

Docket Entry ("Dkt.") 65 for Case Number 16-16663

in the Ninth Circuit Court of Appeals. App., lOa.

The Order of the court of appeals finding Sheridan

liable for Plaintiffs' attorneys' fees on appeal has

been selected for publication, but has not yet been

published. That Order is available at 2018 WL

280907. App., la.

JURISDICTION

The Order of the court of appeals dismissing

Sheridan's appeal as moot was entered on August 3,

2017 and Sheridan's petition for panel rehearing of

that order was denied on October 24, 2017. The

Order of the court of appeals finding Sheridan liable

for Plaintiffs' attorneys' fees on appeal pursuant to

42 U.S.C. § 1988 was entered on January 4, 2017.

This Court's jurisdiction rests on 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article III, Section 2 of the U.S. Constitution provides that "[t]he judicial power shall extend to all

Cases, in Law and Equity, arising under . . . the

Laws of the United States ...."

The pertinent provisions of 42 U.S.C. § 1988 are

reproduced at App. 12a.

INTRODUCTION

In 2007, the plaintiff class of Latino individuals

("Plaintiffs" or the "plaintiff class") brought an action

against the Maricopa County Sheriffs Office

("MCSO") and Sheriff Joseph M. Arpaio ("Sheriff

Arpaio") (collectively, "Defendants"), alleging that

MCSO's officers and Sheriff Arpaio violated the

Fourth and Fourteenth Amendments by profiling the

plaintiff class and subjecting them to illegal stops

while enforcing immigration laws (hereinafter, the

"Melendres Litigation"). Mter a trial on the merits,

the district court issued permanent injunctive relief

against the MCSO intended to protect the civil rights

Plaintiffs' claimed were violated.

Subsequently, the district court found Sheridan,

and others, in civil contempt with respect to matters

unrelated to the permanent injunctive relief. Sheridan appealed the district court's findings that held

him in contempt, and the court's subsequent relief

related to its contempt findings. Importantly, no

aspects of Sheridan's appeal challenged any of the

district court's orders or findings that related to the

merits of Plaintiffs' claims in the Melendres Litigation.

Sheridan retired from MCSO after filing his appeal and the Ninth Circuit dismissed that appeal as

moot due to his retirement. According to the Ninth

Circuit, Sheridan's reputation was an insufficient

interest to afford him Article III standing that would

save his case from mootness.l In addition, he was

found liable for Plaintiffs' attorneys' fees on appeal

pursuant to section 1988, even though he - i.e., a

non-party - was never found liable on Plaintiffs'

underlying claims in the Melendres Litigation.

The Court should grant review in order to resolve

the conflict amongst the courts of appeals on two

issues of national importance. In conflict with numerous courts of appeals and departing from this

Court's well-reasoned holdings, the Ninth Circuit

determined that reputational harm caused by government action, by itself, cannot constitute an Article

III injury that will save a case from mootness. That

decision creates a dangerous rift amongst the Circuits that will, in some cases, preclude review of

government action that directly injures potential

litigants. Moreover, the Ninth Circuit has found

Sheridan - a non-party civil contemnor that faced no

liability on the merits of the Plaintiff class' underlying civil rights claims, which only sought injunctive

relief - liable for attorneys' fees on appeal pursuant

1 Sheridan in no way is conceding that his appeal is moot

merely because he retired from MCSO. In fact, a brief on the

merits will more fully explain that the harm inflicted upon him

by the district court renders his retirement effectively irrelevant to the Article III analysis.

to 42 U.S.C. § 1988, even though his primary basis of

relief was vacatur of the district court's findings that

held him in contempt of court. Such a decision departs from this Court's holdings in Kentucky v.

Graham, 473 U.S. 159 (1985), and directly conflicts

with the law of the Fourth Circuit, which requires

that a litigant be found liable on the merits of a

claim that triggers section 1988 liability prior to

facing fee liability under that statute.

Both of the aforementioned issues present this

Court with an opportunity to mend the rift among

the courts of appeals by determining the scope and

intention of both Article III's live case or controversy

requirement and section 1988's fee-shifting proviSion.

STATEMENT

A. Factual Background and District Court

Proceedings

Mter Plaintiffs filed the underlying lawsuit in

2007, the district court entered a preliminary injunction on December 23, 2011, prohibiting Defendants

from detaining any individual "based only on

knowledge or reasonable belief, without more, that

the person is unlawfully present within the United

States." Doc. 494 at 40.2

Following a bench trial on the merits, the district

court entered permanent injunctive relief on May 24,

2013, finding that the plaintiff class' Fourth and

2 "Doc." refers to documents filed in the Melendres Litigation,

Case 2:07-cv-02513-GMS, by docket number.

Fourteenth Amendment rights had been violated. As

a result, the MCSO only was enjoined from, among

other things, enacting policies and engaging in

conduct that the court found violative of plaintiffs'

rights. Doc. 579.

On February 2, 2015, the district court entered an

order to show cause and set an evidentiary hearing

to determine whether the MCSO, Sheriff Arpaio, and

other nonparties such as Sheridan and Lieutenant

Joseph Sousa ("Sousa") had violated, among other

things, the December 23, 2011 preliminary injunction. Doc. 880. Both Sheriff Arpaio and Sheridan

voluntarily agreed that the order had been violated,

although not intentionally. After a 21-day contempt

evidentiary hearing, the court issued its Contempt

Findings on May 13, 2016. Doc. 1677.

In the Contempt Findings, the district court held

Sheridan, Sheriff Arpaio, and others in civil contempt. 3 As to Sheridan, the court found that he

failed to implement the December 23, 2011 preliminary injunction and violated the court's May 2014

oral instructions to gather evidence responsive to

plaintiffs' discovery requests. Doc. 1677 at 40-43.

On July 20, 2016, the district court issued additional, permanent injunctive relief arising out of the

Contempt Findings, which mandated new internal

affairs procedures for the investigation and resolution of allegations of MCSO employee misconduct

3 The district court declined to use its contempt power to coerce

compliance with the preliminary injunction because Defendants

were no longer violating the injunction. The court ordered

defendants to pay compensation to the victims, but did not hold

Sheridan jointly and severally liable for any of those costs.

that came to light in the 2015 evidentiary hearings.

In addition, the district court authorized an Independent Investigator to examine that misconduct

and to recommend employee discipline. Amending

the injunction order for the second time ("Second

Amended Second Supplemental Permanent Injunction/Judgment Order", hereinafter, the "Contempt

Injunction"), the district court granted the Independent Investigator sole authority to determine whether

to pursue reinvestigations or new charges against

Sheridan, regardless of whether those matters arose

from the Contempt Findings. Doc. 1765, at 5 ~ 313.

B. Sheriff Arpaio's Criminal Trial and President Trump's Pardon.

On October 25, 2016, the district court then issued an Order to Show cause as to whether Sheriff

Arpaio should be held in criminal contempt for

willful disobedience ofthe December 23, 2011 preliminary injunction. The court did not issue any such

order as to Sheridan. Sheriff Arpaio's trial began on

June 26, 2017. On July 31, 2017, Judge Susan Bolton

issued a bench verdict finding him guilty of criminal

contempt of court. Prior to sentencing, President

Donald Trump issued a full and unconditional Pardon to Sheriff Arpaio for his conviction and any other

offenses that may arise out of the Melendres Litigation.

C. The Court of Appeal's Decisions.

Prior to the criminal trial, Sheriff Arpaio, Sheridan, and Sousa sought, with good cause, vacatur of

the Contempt Injunction and recusal of the district

court Judge and the Monitor4 in the court of appeals.

Dkt. 11.5 According to that appeal, the Contempt

Injunction's broad remedies violated the Ninth

Circuit's opinion in Melendres v. Arpaio, 784 F.3d

1254 (9th Cir. 2015) and were thus invalid. In addition, ex parte communications between the district

court Judge and Monitor required recusal of both.

Mter the Opening Brief was submitted in the court

of appeals, Sheriff Arpaio lost his bid for re-election

in November 2016, and Sheridan and Sousa retired

from MCSO. Sousa and Sheriff Arpaio's successor,

Paul Penzone, voluntarily withdrew from the appeal.

After Sheriff Penzone and Sousa were dismissed,

Sheridan was the only appellant remaining. Plaintiffs and the United States (as Intervenor-PlaintiffAppellee) moved to dismiss the appeal for lack of

standing principally because his retirement somehow

rendered the appeal moot. In response, Sheridan

asserted that "[w]hile the injunctive relief and the

civil contempt might not oblige [him] to do or act in

any certain way[ ], the [Contempt Injunction] reopened or initiated new internal affairs investigations

into [his] past acts, which [have] damaged his professional reputation" and thus grants him standing to

proceed. Dkt. 50, at 8-9.

On August 3, 2017, the Ninth Circuit dismissed

Sheridan's appeal as "moot". App., 6a.

4 The Monitor was authorized by the district court to, among

other things, consider disciplinary outcomes for MCSO employees that violated departmental policy.

5 "Dkt." refers to documents filed in the Ninth Circuit, Case 1616663, by docket number.

Sheridan, a non-party civil contemnor,

has incurred no personal liability, financial or otherwise, as a result of the

district court's judgment or finding of

civil contempt. Although he was originally bound by the judgment insofar as

it imposed obligations on the [MCSO],

where he was then employed, his subsequent retirement mooted that interest. Accordingly, he now lacks the necessary interest to maintain this appeal.

App., 7a. The Ninth Circuit erroneously concluded

that "[t]he asserted harm to Sheridan's reputation is

insufficient to save his appeal from mootness." App.,

Sa.

Sheridan filed a petition for panel rehearing on

September 18, 2017, Dkt. 58,6 which was denied on

October 24, 2017. App., 11a.

On November 11, 2017, Plaintiffs filed an Application for Attorneys' Fees on Appeal, seeking recovery of fees incurred in Sheridan's appeal pursuant to

42 U.S.C. § 1988. Dkt. 67. Plaintiffs disingenuously

claimed that they were the "successful party", for

purposes of that statute, because the dismissal of

6 In a signed affidavit submitted with his Petition for Panel

Rehearing, Sheridan asserted that as a result of the finding of

contempt, among other things, he lost his teaching position at

Scottsdale Community College ("SCC"), that he was denied the

opportunity to be considered for the position of Chief of Police of

the Glendale, Arizona Police Department, and that the Arizona

Peace Officer Standards and Training Board ("AZ POST") had

begun investigating his conduct at MCSO related to the

contemp. App., 13a- 18a.

Sheridan's appeal "protected the results PlaintiffsAppellees worked to achieve in the district court, and

ensured continued protections for the Plaintiff class."

Dkt. 67 at 12. Plaintiffs also claimed that they were

entitled to "prevailing party" status on appeal as a

result of prosecuting the contempt proceedings in the

district court. Id.

In response, Sheridan alerted the Ninth Circuit to

this Court's holding in Graham, 473 U.S. at 168,

wherein the Court held that "[s]ection 1988 simply

does not create fee liability where merits liability is

nonexistent." Dkt. 68 at 5. Sheridan made clear that

he faced no merits liability in the district court, as he

was not a party to Plaintiffs' injunctive relief action

against MCSO and Sheriff Arpaio, and thus could

not be held personally liable for Plaintiffs' attorneys'

fees under section 1988.

The Ninth Circuit, however, misinterpreted Sheridan's argument; i.e., that because he was not found

in any way to be liable on the merits of Plaintiffs'

claims, he was shielded from section 1988 liability

pursuant to this Court's holding in Graham.

Sheridan further argues that Kentucky

v. Graham ... stands for the proposition that a non-party may not be liable

for a fee award under section 1988. We

do not read Graham so broadly. Graham held that a government entity

could not be vicariously liable for a fee

award when plaintiffs prevailed in a

lawsuit against its employees in their

personal capacities.

App., 3a- 4a.

Failing to apply this Court's holding in Grahamand directly conflicting with the Fourth Circuit's

holding in Johnson v. City of Aiken, 278 F.3d 333,

338 (4th Cir. 2002) -the Ninth Circuit granted, in

part, Plaintiffs' Application for Attorneys' Fees on

Appeal.7

REASONS FOR GRANTING THE PETITION

A. The Court Should Grant Review In Order

To Settle The Dispute Between The Circuits Concerning The Effect Of A Reputational Injury On The Article III Analysis.

Article III requires that "an actual controversy ..

. be extant at all stages of review". Campbell-Ewald

Co. v. Gomez, 136 S.Ct. 663, 669 (2016) (citations

omitted). "If an intervening circumstance deprives

the plaintiff of a 'personal stake in the outcome of the

lawsuit,' at any point during litigation, the action can

no longer proceed and must be dismissed as moot."

ld. (citations omitted).

The decision below -that Sheridan's retirement

from MCSO somehow mooted his appeal (based on

the fact the he did not incur damages in the Melen-

7 The Ninth Circuit referred the matter to the Appellate

Commissioner to determine the reasonableness of Plaintiffs'

requested fees.

dres Litigation) and that any reputational injury8

arising from the Contempt Findings/Injunction does

not afford him a sufficient interest in the case directly conflicts with the sound decisions of the D.C.

Circuit, whose reasoning has been applied and

adopted by numerous other courts of appeals.

According to the D.C. Circuit, "when injury to

reputation is alleged as a secondary effect of an

otherwise moot action, [it is] required that 'some

tangible, concrete effect' remain, susceptible to

judicial correction." McBryde v. Comm. to Review

Circuit Council Conduct & Disability Orders of

Judicial Conference of U.S., 264 F.3d 52, 57 (D.C.

Cir. 2001) (citation omitted). In other words, direct

reputational injury that occurs as a result of a challenged government action will satisfy Article III's

standing requirements and afford a federal court

jurisdiction to hear a case that would otherwise be

considered moot. Foretich v. United States, 351 F.3d

1198, 1214 (D.C. Cir. 2003) (citing McBryde, 264

F.3d at 57).

The D.C. Circuit's holdings, and many of the

courts of appeals who have adopted the

McBryde/Foretich rule, is derived from this Court's

long-standing precedent that reputational injury

may constitute an Article III injury-in-fact. See

McBryde, 264 F.3d at 57 (citing Meese v. Keene, 481

U.S. 465 (1987)); Foretich, 351 F.3d at 67 (citing id.

at 473-77). For example, federal courts have the

8 The Ninth Circuit did not find that Sheridan's reputation had

not been harmed, but rather that any reputational injury, by

itself and in any form, was insufficient to save his appeal from

mootness.

power to hear habeas corpus petitions that are

otherwise moot so long as the petitioner's injury is

more than a mere "collateral consequence" of the

conviction. Spencer v. Kemna, 523 U.S. 1 (1998); see

id. at 21 (STEVENS, J., dissenting) (the interest in

vindicating one's reputation can constitute a sufficient interest to overcome mootness).

The Ninth Circuit, however, has held that Spencer absolutely precludes a litigant from asserting a

reputational injury in order to avoid mootness.

Jackson v. Cal. Dep't of Mental Health, 399 F.3d

1069, 1075 (9th Cir. 2005). That line of reasoning,

which resulted in the Ninth Circuit dismissing

Sheridan's appeal as moot, not only conflicts with the

law of other Circuits, but departs form this Court's

holdings concerning the effects of reputational injuries in the Article III context. See Keene, 481 U.S.

465; Spencer, 523 U.S. 1.

The need to resolve this conflict, though, is especially acute because the Ninth Circuit absolutely

bars litigants from challenging government action

that has directly and fundamentally harmed their

reputation, if the other aspects of that challenge are

moot. As that same injury produces a different result

in other Circuits, the Ninth Circuit's approach runs

afoul of the federal interest in ensuring that all

citizens have access to the courts. Three Affiliated

Tribes of Fort Berthold Reservation v. Wold Eng 'g,

476 U.S. 877, 888 (1986) ("The federal interest in

ensuring that all citizens have access to the courts is

obviously a weighty one.").

1. The Courts Of Appeals Are Divided

Over Whether A Reputational Injury Is

Sufficient For Purposes Of Article III To

Present A Live Controversy And Avoid

Mootness.

The division among the courts of appeals regarding whether a reputational injury is sufficient to

establish an Article III injury and preserve a case

from mootness leaves no doubt that if this case had

been heard in the D.C., Second, Fourth, or Fifth

Circuits, then Sheridan's appeal would have been

decided on the merits as opposed to dismissed as

moot.

The decision of the court below, in conjunction

with its opinion in Jackson, precludes a litigant in

the Ninth Circuit from successfully asserting that a

direct, reputational injury arising from a challenged

government action is sufficient to save a case from

mootness.

Even though the relevant question in Jackson

was whether a habeas petitioner had standing to

challenge his confinement under California's Sexually Violent Predator Act ("SVPA''), the court discussed

the consequences of that confinement upon the

petitioner's reputation and whether the petitioner

therefore had an interest sufficient keep his case

from becoming moot. 399 F.3d at 1070, 1075. According to the court, though, "[t]he Supreme Court has

consistently held that reputation is not a sufficient

interest to avoid mootness." ld. ("We have obviously

not regarded [an interest in vindicating reputation]

as sufficient [to avoid mootness] in the past - even

when the finding was not that of a parole board, but

the much more solemn condemnation of a full-dress

criminal conviction") (quoting Spencer, 523 U.S. at 16

n.8). Thus, the court held that any reputational

injury suffered by the petitioner "would not be

enough to keep the case from becoming moot", much

less constitute an injury-in-fact affording him "standing to challenge the state court's jurisdiction in order

to vindicate his reputation." 399 F.3d at 1075.

Relying on Jackson, the Ninth Circuit stated that

"[t]he asserted harm to Sheridan's reputation is

insufficient to save his appeal from mootness." App.,

8a.

The court found insignificant that a district judge

had found Sheridan in civil contempt, that he was

under investigation by AZ POST as a result of the

district court's actions, and that the finding of contempt severely limited his ability to procure future

employment. Id. Thus in the Ninth Circuit, even

where a litigant asserts direct, ongoing, and continuous reputational harm resulting from government

action (here, a court's finding of civil contempt and

subsequent, related actions), such harm will never

sufficiently present a "live controversy" that will save

a case from mootness. This is a dangerous interpretation of this Court's Article III jurisprudence, and

directly conflicts with the law of numerous Circuits.

In the D.C. Circuit, a reputational injury derived

from a challenged government action may present a

live controversy affording a federal court jurisdiction

to hear an otherwise moot case.

In McBryde, the D.C. Circuit held that "when injury to reputation is alleged as a secondary effect of

an otherwise moot action, [it is] required that 'some

tangible, concrete effect' remain, susceptible to

judicial correction." 264 F.3d at 57 (citation omitted).

In that case, the Judicial Council of the Fifth Circuit

(the "Counsel") sanctioned a federal judge by imposing upon him one and three-year suspensions, m

addition to a public reprimand. Id. at 55.

By the time the court heard Judge McBryde's appeal of those sanctions, however, the one and threeyear suspensions had expired and could not be

redressed. Id. at 55. According to the court, any

reputational injury suffered by Judge McBryde as a

result of the imposition of the suspensions was "too

vague and unsubstantiated to preserve [his] case

from mootness." Id. at 57 (citation omitted). "Insofar

as the one-year and three year suspensions may have

continuing reputational effects [upon Judge

McBryde], they are not enough. The legally relevant

injury is only the incremental effect of a record of the

suspensions . . . ." Id. Thus, the court dismissed as

moot his specific challenges to those suspensions.

The public reprimand, though, caused distinct

and separate reputational injuries that kept alive

Judge McBryde's request that the court invalidate

the reprimand. Id. at 56-57. The mere fact that the

reprimand was "part of the historical record" saved

that portion of his appeal from mootness. Id. at 57.

The court recognized that if Judge McBryde were to

prevail in seeking invalidation of the reprimand,

then his reputation would no longer be subject to the

continuous stigmatization arising from what was

then a legally-valid reprimand. Id. ("injury to reputation can nonetheless suffice for purposes of constitutional standing'').

Expanding upon its holding in McBryde, the D.C.

Circuit in Foretich held that "where reputational

injury derives directly from an unexpired and unretracted government action, that injury satisfies the

requirements of Article III standing to challenge that

action." 351 F.3d at 1213.

In Foretich, Congress passed a bill of attainder

(the "Elizabeth Morgan Act") that effectively extinguished the plaintiffs visitation rights of his daughter - that he previously enjoyed via a court order and "restrict[ed] his ability to seek future custody or

visitation orders." Id. at 1210. By the time the court

of appeals heard the case, though, the daughter had

already reached the age of majority. Id. Insofar as

the plaintiff sought invalidation of the Elizabeth

Morgan Act to seek future custody or visitation

rights, his case was moot. Id.

However, the plaintiff asserted, and the court of

appeals agreed, that his reputational injury - i.e.,

"that the Elizabeth Morgan Act embodies a congressional determination that he engaged in criminal

acts of child abuse from which his daughter needed

protection" - satisfied Article III's cognizability and

redressability requirements. Id. at 1211.

The court of appeals properly recognized that

"where harm to reputation arises as a byproduct of

government action, the reputational injury, without

more, will not satisfy Article III standing when that

government action itself no longer presents an ongoing controversy." Id. at 1212 (emphasis in original).

However, the plaintiffs claim of reputational harm

presented a live and ongoing controversy because a

"declaratory judgment that the [Act was] unlawful

will consequently provide meaningful relief' by

erasing Congress' determination that he was a child

abuser. ld. at 1213. In other words, so long as the Act

remained valid, the plaintiff was continuously being

labeled a child abuser by Congress and its invalidation would successfully redress his reputational

injury by eradicating that determination. Id.

Rejecting the notion that the plaintiffs case in its

entirety was moot, the court of appeals expressly

held that a direct reputational injury to a litigant's

reputation arising from government action "satisfies

the requirements of Article III standing to challenge

that action." Id. at 1213.

Thus, the D.C. Circuit in McBryde/Foretich established that reputational injury alone can save a case

from mootness when a litigant suffers cognizable

harm from a continuing, unretracted government

action. That framework has been adopted and applied by numerous courts of appeals. 9

The Second Circuit, in Gully v. Nat'l Credit Union

Admin. Bd., 341 F.3d 155 (2d Cir. 2003), recognized

that "[s]everal circuits have found reputational

injury sufficient to establish 'injury in fact"'. I d. at

162 (quoting McBryde, 264 F.3d at 57). In Gully, the

National Credit Union Administrative Board (a

federal agency) found that the plaintiff had "engaged

in unsafe and unsound practices [in her role as the

9 See Parsons v. Dept. of Justice, 801 F.3d 701, 711 (6th Cir.

2015) ("Reputational injury . . . is sufficient to establish an

injury in fact.") (citing Foretich, 351 F.3d at 1213); Robertson v.

Colvin, 564 Fed.Appx. 931, 934 (lOth Cir. 2014) (plaintiffs

reputational injury was "too abstract and speculative" to save

her case from mootness) (citing Foretich, 351 F.3d at 1212).

manager of a federally-insured credit union] and that

she breached her fiduciary duty''. 341 F.3d at 158.

The Board, however, did not take any further action

against the plaintiff because, among other things,

she had already resigned from her managerial position. Id. at 159. In deciding whether the plaintiff

even had standing to redress a purely reputational

mJury, the Second Circuit held that the Board's

findings of misconduct were an effective "death

knell" for her career and that "[a] finding [in her

favor] ... would remove the stain on [her] professional record." 341 F.3d at 162 (citing Keene, 481

U.S. at 477). In so concluding, the Second Circuit

cited McBryde for the proposition that a "blight" on

one's reputation is the kind of injury-in-fact contemplated by Article III so long as that injury is a direct

and serious effect of the challenged action. 341 F. 3d

at 162 (citing McBryde, 264 F.3d at 57).

Similarly, the Fourth Circuit has applied

McBryde in determining the sufficiency of a plaintiffs asserted reputational harm for purposes of

Article III. Lebron v. Rumsfeld, 670 F.3d 540, 562

(4th Cir. 2012). In Lebron, the plaintiff claimed,

among other things, "that he suffers a continuing

injury from the stigma of being labeled an enemy

combatant" as a result of his conviction on federal

terrorism charges and that such reputational harm

constituted an Article III injury. Id. at 562.10

10 The plaintiff had asserted various claims arising out of his

conviction on federal terrorism charges, all of which the district

court, and the court of appeals, found to be meritless. On

appeal, the plaintiff, in part, challenged the district court's

finding that "he lacked standing to seek an order enjoining the

Applying the D.C. Circuit's reasoning from

McBryde, the court found the plaintiffs reputational

injury "inadequate to satisfy the 'injury in fact'

requirement." Id. ("[t]he legally relevant injury is

only the incremental effect of a record of the suspensions . . . over and above that caused by the . . .

explicit condemnations.") (quoting McBryde, 264

F.3d at 57). In addition to being labeled an enemy

combatant, the plaintiff had also been convicted "of

three federal crimes of terrorism based on proof that

he was a member of al Qaeda". 670 F.3d at 562. In

light of the heinous underlying facts of his conviction, which itself was not appealable for unrelated

reasons, the court could not "imagine what 'incremental' harm it does to [plaintiffs] reputation to add

the label of 'enemy combatant' to the fact of his

convictions and the conduct that led to them." Id.

In Danos v. Jones, 652 F.3d 577 (5th Cir. 2011),

the Fifth Circuit adopted the McBryde/Foretich rule

in affirming the district court's grant of the defendant's motion to dismiss for lack of standing. There,

the plaintiff- a secretary to then-district Judge G.

Thomas Porteous, Jr. - challenged on numerous

grounds11 the Judicial Council of the Fifth Circuit's

public reprimand of Judge Porteous and its suspension of his authority to employ staff during his thenimpending impeachment hearing. Id. at 580. After he

government from designating him as an enemy combatant in

the future." 670 F.3d at 560.

11 Seeking a declaratory judgment that the Council's action

was ultra vires, the plaintiffs case was found to be moot

because her claim for monetary relief was barred by sovereign

immunity and the Senate's removal of Judge Porteous from

office precluded the plaintiff from seeking injunctive relief. Id.

at 584.

was removed from office by the Senate - effectively

rendering the case moot - the plaintiff attempted to

assert an ongoing Article III controversy by stating

that the Council's reprimand of Judge Porteous

harmed her reputation. Id. at 584. Adopting the

reasoning in Foretich, the Fifth Circuit disposed of

that argument because "any such harm is 'merely

the secondary effect of an injury that is otherwise

moot."' Id. (quoting Foretich, 351 F.3d at 1212).

Thus, it is clear that if Sheridan's appeal were

brought in the D.C., Second, Fourth, Fifth, or even

the Sixth or Tenth Circuits, his reputational injury,

at minimum, would have at least been subjected to a

more exacting analysis and, likely, found to have

constituted an acceptable injury-in-fact susceptible

to judicial correction.12

12 Numerous district courts have also directly applied the

McBryde/Foretich reasoning and held that a plaintiff has

standing to assert a reputational injury that keeps alive a moot

case. Hong Kong Entm't (Overseas) Investments Ltd. v. United

States Citizenship & Immigration Servs., No. 1:16-CV-00009,

2017 WL 4369475, at *3 (D. N. Mar. I. Oct. 1, 2017) (rejecting

plaintiffs reputational injury as "too vague and unsubstantiated to preserve a case from mootness.") (quoting McBryde, 264

F.3d at 57); Pearl River Union Free Sch. Dist. v. Duncan, 56 F.

Supp. 3d 339, 365 (S.D.N.Y. 2014) (reputational harm derived

from defendant's "unexpired and unretracted" determination

that plaintiff knowingly failed to investigate incident of racial

harassment qualified as injury-in-fact) (quoting Foretich, 351

F.3d at 1213); Silicon Econ., Inc. v. Fin. Accounting Found., No.

CIV.A. 11-163, 2011 WL 3742182, at *5 (D. Del. Aug. 18, 2011)

("Injury to reputation, including commercial reputation, may

constitute a cognizable injury-in-fact for Article III standing.")

(citing Foretich, 351 F.3d at 1211); Kendall v. Russell, No. CIV.

2007-126, 2008 WL 219762, at *4 (D.V.I. Jan. 16, 2008),

judgment entered, No. CIV. 2007-126, 2008 WL 501164 (D.V.I.

Sheridan's reputational harm is well-documented

in the record, and is not in any way disputed. As a

direct result of the Contempt Findings/Injunction, he

lost his teaching position at SCC, an AZ POST

investigation was opened up against him and directly threatened his ability to procure future employment as a law enforcement officer, and he was denied

the ability to even interview for a Chief of Police

position. Concordantly, any court following the

McBryde/Foretich framework would likely conclude

(especially in the age of the internet) that those

devastating consequences to Sheridan's reputation

constitute a sufficient injury-in-fact affording jurisdiction to hear an appeal of the finding of contempt.

2. The Ninth Circuit's Determination That

Mootness Cannot Be Overcome By Reputational Harm Not Only Conflicts

From The Reasoned Approach Adopted

By Its Sister Circuits, But Departs With

This Court's Well-Established Holdings.

This Court's decision in Meese v. Keene, 481 U.S.

465 (1987) was a crucial component and guidepost in

the development of the McBryde/Foretich framework.

In Keene,

the Court found that a politician and

film distributor had standing to challenge a government agency's stigmatizFeb. 16, 2008), and aff'd, 572 F.3d 126 (3d Cir. 2009) (finding

that the "direct and potentially prejudicial impact [that the

Virgin Island Commission on Judicial Proceedings' hearings]

could have on [plaintiffs] reputation and career, [made for] a

live controversy as contemplated by Article III") (citing

McBryde, 264 F.3d at 57).

ing as 'political propaganda' foreign

films that he wished to exhibit. The

Court rested not only on affidavits indicating that this branding would affect

his chances for reelection, but also on

the impact on his reputation generally[.]

McBryde, 264 F.3d at 57 (internal citations omitted)

(discussing Keene, 481 U.S. at 473-74); see also

Foretich, 351 F.3d at 1211 (citing id. at 473-77).

The D.C. Circuit relied on Keene in determining

that a reputational injury could constitute an Article

III injury-in-fact, McBryde, 264 F.3d at 57 (citing 481

U.S. at 473-74), and that a reputational injury can be

redressed by invalidating the government action

from which such harm derives. Foretich, 351 F.3d at

1215 (citing 481 U.S. at 477). Similarly, the Second

and Tenth Circuits also contemplated the application

of Keene in adopting the McBryde/Foretich framework. Gully, 341 F.3d at 162 (reputational harm can

constitute injury-in-fact) (citing Keene, 481 U.S. at

472-77); Robertson, 564 Fed.Appx. at 934 (same)

(citing id.).

To support its distinction between the kind of direct reputational harm that could support standing

and the incremental harm that could not support

standing, the McBryde court relied upon Spencer's

suggestion "that where an effect on reputation is a

collateral consequence of a challenged sanction, it is

insufficient to support standing, or presumably, to

escape mootness." 264 F.3d at 57(citing Spencer, 523

U.S. at 16-17 n.8) (emphasis in original). Therein,

the court bolstered its decision to reject incremental

reputational harm as grounds for standing by com-

paring such harm to the kind of mere, 'collateral

consequences' that habeas corpus petitioners are

prohibited from asserting as Article III injuries ...."

264 F.3d at 57 (citing id.).

In Jackson, though, the Ninth Circuit interpreted

Spencer much more narrowly and stated that this

"Court has consistently held that reputation is not a

sufficient interest to avoid mootness." 399 F.3d at

1075 (citing Spencer, 523 U.S. at 16-17 n.8).

Thus, this Court's decision in Spencer has

spawned two entirely different approaches to analyzing an asserted reputational injury in the context of

Article III. Such a rift guarantees that federal courts

will possess jurisdiction to hear claims of reputationa! injury in some Circuits, but courts in other Circuits will be stripped of jurisdiction in similar cases.

In fact, Justice Ginsburg, in her dissent in Spokeo

v. Robins, 136 S.Ct. 1540 (2016), has tacitly approved

the notion that reputational injury alone can elevate

a litigant's asserted reputational injury above the

threshold imposed by Article III. Id. at 1556

(GINSBURG, J., dissenting). Indeed, this Court's

extensive discussion of Article III standing in Spokeo

recognized that intangible harm could in fact elevate

bare procedural violations of federal law, which by

themselves were insufficient injuries under Article

III, above the threshold injury-in-fact requirement so

long as that intangible harm was both concrete and

particularized to the plaintiff. Although the Court

remanded the case so that the Ninth Circuit could

correctly analyze both the concreteness and particularity aspects of the plaintiffs asserted injury, Justice Ginsburg's dissent found that remand was

unnecessary because the plaintiffs asserted injury to

his employment prospects caused actual, concrete

harm sufficient to confer standing. Id.

There is little doubt that Justice Ginsburg's

statements concerning the kind of reputational

injury alleged by the plaintiff in Spokeo are consistent with this Court's holdings in Keene, and the

McBryde/Foretich framework adopted by numerous

Circuits. In contrast, the Ninth Circuit's approach

encourages forum shopping when a plaintiff seeks to

challenge government action, but where other aspects of his case may preclude him from asserting a

valid injury-in-fact. Indeed, the Ninth Circuit's

rejection of reputational harm as an injury-in-fact

restricts access to the courts and discourages litigants with concrete and cognizable reputational

injuries from challenging governmental action that

imposes direct reputational harm, but is otherwise

moot.

3. This Case Cleanly Presents An Opportunity For The Court To Resolve The

Dispute Concerning The Effect Of A

Reputational Injury On The Article III

Analysis.

This case presents an appropriate vehicle for the

Court to define the scope of Article III and whether a

litigant may assert a reputational injury as a facet of

his case that will save it from mootness.

In the court below, Sheridan asserted numerous,

direct effects of the Contempt Injunction on his

personal and professional life that, in many other

Circuits, would at least trigger an increased level of

analysis as to whether those injuries presented a

live case or controversy susceptible to judicial correction (as opposed to the Ninth Circuit's conclusory

rejection of the sufficiency of those injuries). In fact,

Sheridan alleged that he lost his teaching position as

a result of the district court's Contempt Finding/Injunction, and that he was precluded from even

applying for a Chief of Police position in another

county. Moreover, the Contempt Injunction authorized continuous and unlimited investigation by the

Independent Investigator into Sheridan's conduct as

an MCSO employee, regardless of whether that

conduct related in any way to Plaintiffs' underlying

claims in the Melendres Litigation. Such exposure to

investigation imminently threatens Sheridan's AZ

POST certification, the revocation of which would

constitute a death sentence for his career in law

enforcement. Indeed, Sheridan alleged that an AZ

POST investigation had been opened up against him

as a result of the district court's actions.

These injuries surely are of the kind and quality

that under the McBryde/Foretich analysis would

trigger Article III jurisdiction. The injury to Sheridan's reputation is not a mere incremental effect of

the district court's actions that he challenges on

appeal, but are rather lasting consequences that can

be remedied by the invalidation of the Contempt

Findings. Rendering those findings null and void

would not only clear his name, but eliminate any

continuing stigma that arises from a judicial finding

of contempt against the former Chief Deputy of the

largest County Sheriffs Office in the State of Arizona.13

13 "Indeed, experience has taught that the dignity accorded an

individual may depend as much on reputation as on actual

The Court should grant review.

B. The Court Should Grant Review In Order

To Settle The Dispute Between The Circuits Concerning The Limits Of Fee Liability Under 42 U.S.C. § 1988.

The Court should also grant review in order to

settle the conflict between the Ninth and Fourth

Circuits regarding whether a litigant is required to

be liable on the merits for a plaintiffs underlying

civil rights claims before he can be found liable for

attorneys' fees pursuant to 42 U.S. C. § 1988(b).

This Court's unanimous decision in Graham, until now, has been crystal clear: "[s]ection 1988 simply

does not create fee liability where merits liability is

non-existent." 473 U.S. at 168; see also Indep. Fed'n

of Flight Attendants v. Zipes, 491 U.S. 754, 762

(1989) ("Our cases have emphasized the crucial

connection between liability for violation of federal

law and liability for attorney's fees under federal feeshifting statutes.") (citing Id.). In Graham, several

plaintiffs brought civil rights claims against law

enforcement officers in their individual capacities.

They also named as a defendant the Commonwealth

of Kentucky, from which the plaintiffs sought only

attorneys' fees in the event that they prevailed on

the merits. See Graham, 473 U.S. at 161-62. The

Commonwealth was dismissed on Eleventh Amendment grounds, but when the case settled in favor of

merit." Mosely v. City of Chicago, 252 F.R.D. 421, 433 (N.D. Ill.),

order vacated in part on reconsideration sub nom. Mosley v. City

of Chicago, 252 F.R.D. 445 (N.D. Ill. 2008) (citing Posner,

Cardozo: A Study In Reputation (1993)).

the plaintiffs, the plaintiffs sought an attorneys' fee

award against the Commonwealth. See id. at 162.

The district court awarded fees, and the Sixth Circuit affirmed. See id. at 163. This Court reversed,

reasoning that § 1988 authorized payment of fees

only by "the party legally responsible for relief on the

merits." Id. at 164. The Court added that even if

immunity is the basis for a party's avoidance of

liability, that party cannot be liable under§ 1988 for

payment of fees. See id. at 165.

Recognizing that the nexus between fee liability

and merits liability is an absolute requirement when

assessing fees under section 1988, the Fourth Circuit

specifically precludes the recovery of such fees

against a defendant who faces no liability on the

merits of claims that trigger section 1988. Johnson v.

City of Aiken, 278 F.3d 333, 338 (4th Cir. 2002)

("Graham teaches us that [the defendant]'s status as

a nonparty on the state law assault claim protects

him from § 1988 liability arising from that claim.").

Thus in the Fourth Circuit, section 1988 fee liability

may only be assessed against a defendant who is

first found to be liable on the merits of a plaintiffs'

claim or claims that trigger section 1988 in the first

place. See id.

The Ninth Circuit, on the other hand, places no

such restriction on the ambit of section 1988. Bucking the clear requirements of Graham, the Ninth

Circuit has effectively eliminated the boundaries of

section 1988 fee liability and allows for attorneys'

fees to be assessed against any litigant in a civil

rights case, regardless of whether that litigant could

ever be found liable on the merits of plaintiffs' underlying claims.

Thus, the Ninth Circuit's elimination of the limits

imposed by this Court on that fee-shifting statute

ensures that non-parties will face the substantial

risk of having to pay for plaintiffs' attorneys' fees

merely for attempting to protect their own rights in

federal civil rights cases that trigger section 1988.

Worse, those same non-parties who are found in

contempt by a court may be effectively precluded

from challenging that finding on appeal and clearing

their name due to these exorbitant risks.

The Courts of Appeals are Divided

Over the Scope of 42 U.S.C. § 1988(b)

Fee Liability.

A rift now exists in the Circuits regarding the circumstances under which section 1988(b) fee liability

may be imposed.

The court below held that a non-party can be liable under section 1988(b) for attorneys' fees even

when he was not a named defendant in the underlying civil rights action and faced no liability on the

merits of Plaintiffs' claims. Without even considering

this Court's clear mandate that section 1988 fee

liability is predicated upon merits liability, the Ninth

Circuit held Sheridan personally liable for Plaintiffs'

attorneys' fees on appeal solely because "he actively

inserted himself into the litigation by appealing the

contempt finding in the hope of clearing his name."

App., 4a. According to the court, a section 1988

award for fees incurred on appeal against a nonparty are justified because "non-party contemnors

may be held liable for attorneys' fees in other contexts." Citing to Portland Feminist Women's Health

Ctr. v. Advocates for Life, Inc., 877 F.2d 787, 789-90

(9th Cir. 1989) - which did not apply section 1988,

but rather held a non-party civil contemnor liable for

plaintiffs' attorneys' fees as a sanction of the contempt itself - the Ninth Circuit found "no reason to

treat an award of fees under section 1988 any differently." App., 4a. Thus without any basis to do so, the

Ninth Circuit has limited Graham to standing only

for the proposition that governmental entities dismissed on immunity grounds cannot face fee liability

in civil rights suits against the entities' employees.

The Seventh Circuit has interpreted Graham as

allowing for the recovery of attorneys' fees against a

non-party, so long as that non-party has fully participated in the underlying litigation of the merits of

the plaintiffs' civil rights claims, regardless of

whether that party will face any merits liability. In

Charles v. Daley, 846 F.2d 1057 (7th Cir. 1988), the

court held that private intervening parties who could

not have been found liable for violations of the plaintiffs' constitutional rights were nonetheless liable for

fees where they had been full participants with the

governmental defendants in the litigation and, "for

all practical purposes were their alter ego". I d. at

1064-65. The court distinguished Graham principally

on the basis that Kentucky was immune from fees as

the result of the operation of the Eleventh Amendment and had been dismissed from the law suit on

that basis, and ultimately ruled that Graham did not

prohibit the imposition of section 1988 fee liability

against the intervenors. Id. at 1066.

In the Fourth Circuit, however, a litigant cannot

be held liable under section 1988 unless he is liable

on the merits of the claims for which plaintiffs are

seeking their fees. Johnson, 278 F.3d at 338. In other

words, a plaintiff may only recover attorneys' fees

from a defendant under section 1988, and only where

that defendant has been found liable on the merits of

the specific claims for which the plaintiff seeks fees.

See id.

In Johnson, plaintiffs alleged various federal civil

rights violations against defendant City of Aiken,

and defendant law enforcement officer Clark. 278

F.3d at 335. In addition, plaintiffs asserted a state

law assault claim against the City only. Id. Mter a

trial on the merits in which the jury awarded damages to the Plaintiffs for the various federal claims

against all defendants and against the City for the

state law assault claim, an appeal to the Fourth

Circuit disposed of various claims on qualified immunity grounds. Id. at 336. "[A]fter appeal only two

awards remained: the state law assault claim award

. . . against the City and the federal vehicle entry

claim award of [70] cents ... against Clark." Id.

On remand, the district court awarded plaintiffs

"$98,828.28 in attorneys' fees and costs against

Clark" pursuant to section 1988. Id. at 336. The

district court based "Clark's fee liability on [the

plaintiffs'] success against the City on the state law

assault claim" and determined that "he was responsible for paying the full [section 1988] fee award." Id.

at 337.

Recognizing that"§ 1988 authorize[s] payment of

fees only by 'the party legally responsible for relief on

the merits"', Id. at 338 (quoting Graham, 472 U.S. at

164), the Fourth Circuit held that "Clark's status as

a nonparty on the state law assault claim protects

him from § 1988 liability arising from that claim."

278 F.3d at 338. Accordingly, the Fourth Circuit

vacated the fee award because "the only appropriate

award under § 1988 was none at all". I d. at 339; see

also In re Crescent City Estates, LLC, 588 F.3d 822,

827 (4th Cir. 2009) ("because attorneys are nonparties not liable on the merits, they are generally

outside the ambit of fee-shifting statutes.") (citing id.

at 338).

As such, had Sheridan challenged the contempt

finding in the Fourth Circuit, he would in no way

face liability under section 1988 regardless of the

ultimate disposition of his appeal. He faced no liability on the merits of Plaintiffs' injunctive relief claims

and any claim by Plaintiffs for an award of attorneys'

fees against him would have been summarily ignored

by any court in that Circuit per the express holding

in Johnson.

In any event, there is no harmony among the Circuits with regards to the definitive scope of fee

liability under section 1988. In the Fourth Circuit,

fee liability is predicated upon a party's merits

liability. In the Seventh Circuit, a litigant must

"actively participate" in the underlying litigation as a

prerequisite to being liable for a prevailing party's

fees. In the Ninth Circuit, however, no clear limitations on section 1988 exist. Defendants and nonparties alike face fee liability in civil rights cases,

with no regard to this Court's holdings in Graham.

The Court should grant review in order to mend this

conflict and halt the aggressive and unfounded

expansion of the scope of 42 U.S.C. § 1988 in the

Ninth Circuit.

2. This Case Cleanly Presents The Court

With An Opportunity To Protect NonParty, Government Employees From

The Burden Of Fee Shifting Statutes

And Eliminate Forum Shopping In

Civil Rights Cases.

This case presents the Court with a proper vehicle to comment on the ambit of section 1988 fee

liability and conclusively resolve the dispute between

the Circuits on whether Graham precludes a federal

court from imposing such liability upon a non-party

to a civil rights action that otherwise triggers section

1988(b). There are no factual disputes that could

interfere with this Court's ability to decide on the

issues. Sheridan is a non-party civil contemnor who

never faced any liability whatsoever on Plaintiffs'

injunctive relief action in the district court. On

appeal of the district court's finding of him in

contempt, the Ninth Circuit dismissed his appeal as

moot. Pursuant to 42 U.S.C. § 1988(b), the Ninth

Circuit then awarded Plaintiffs their attorneys' fees

incurred for work related to their motion to dismiss.

As such, there is nothing to impede this Court's

ability decide this issue.

Moreover, this Court has stated that section 1988

is not a "relief fund for lawyers." Hensley v. Eckerhart, 461 U.S. 424, 446 (1983) (citation omitted).

Ignoring Henley, though, the Ninth Circuit has

transformed the fee-shifting statute into just that; a

mechanism through which plaintiffs may recover

attorneys' fees from a virtually unlimited pool of

litigants in federal civil rights cases, without any

regard to whether that litigant has a liability connection to the merits of the underlying claims that

trigger section 1988(b). There is simply no basis in

that statute, or this Court's holdings, to impose

section 1988 liability against a non-party for fees

that were incurred in that non-party's appeal of a

court's contempt findings.

The imposition of fee liability upon non-party civil

contemnors is especially troubling in light of this

Court's express requirement that "[t]he touchstone of

the prevailing party inquiry must be the material

alteration of the legal relationship of the parties in a

manner which Congress sought to promote in the fee

statute." Texas State Teachers Ass'n v. Garland

Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989). Thus,

by expanding section 1988 fee liability to non-party

civil contemnors such as Sheridan- who seek only to

vacate the district court's contempt findings, and

where such vacatur would have absolutely no effect

on any kind of substantive relief previously afforded

to Plaintiffs - the Ninth Circuit has ignored Garland

Independent School District's express mandate.

Alarmingly, the Ninth Circuit's interpretation of

Graham has dangerous implications for employees of

public entities that are sued for federal civil rights

claims. In effect, where plaintiffs seek injunctive

relief against a public entity under those civil rights

stat-utes that trigger section 1988 liability, any

employee found in contempt of violating an

injunction will face substantial risk of incurring fee

liability merely for challenging that finding on

appeal, even when that employee had no

involvement in the underlying litigation and would

face no liability on the merits of plaintiffs' claims.

Such a result will produce a vast chilling effect on

those seeking to clear their name in the courts of

appeals who claim to have been wrongly held in

contempt, but otherwise cannot afford the substantial risk of fee liability. Moreover, civil rights plaintiffs will be incentivized to bring suits in forums

adopting the Ninth Circuit's approach to section

1988 fee liability because of the vast scope of section

1988 and increased chances of fee recovery.

Indeed, the Ninth Circuit has imposed such liability upon Sheridan, a life-long civil servant who has

been found liable for Plaintiffs' attorneys' fees incurred in opposing his challenge to the district

court's Contempt Injunction, but whose appeal has

been dismissed as moot. Even though the Appellate

Commissioner has yet to decide on the total amount

of the fee award against Sheridan, Plaintiffs have

requested a staggering $63,460.92 in fees to be

assessed against him solely for attempting to clear

his name.

Therefore, this case cleanly presents the Court

with an opportunity to impose limits upon the ambit

of liability litigants face under section 1988, provide

non-parties the ability to safely and efficiently challenge court orders that affect only their own rights,

and eliminate forum-shopping in civil rights cases

that trigger section 1988's fee-shifting provisions.

By departing from this Court's teachings concerning the effect of a reputational injury on the Article

III analysis, and by directly conflicting with the D.C.

approach

Circuit's

well-reasoned

McBryde/Foretich, the Ninth Circuit has limited

access to the federal courts where such access would

otherwise be enjoyed by litigants in numerous other

Circuits. In addition, the Ninth Circuit has effectively eliminated any barriers to fee liability previously

imposed by 42 U.S.C. § 1988(b) by finding a nonparty civil contemnor personally liable for attorneys'

fees incurred on an appeal of a district court's contempt findings. That decision directly conflicts with

this Court's holding in Graham and the Fourth

Circuit's holding in Johnson, the resolution of which

will create uniformity amongst the Circuits in the

application of section 1988.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Dated: January 22, 2018

Respectfully submitted,

DENNIS I. WILENCHIK

Counsel of Record

JOHN D. WILENCHIK

BROCK D. KAMINSKI

WILENCHIK & BARTNESS,

P.C.

2810 N. Third St.

Phoenix, AZ 85004

(602) 606-2810

Counsel for Petitioner

Gerard A. Sheridan

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.