Respondents Brief — Gerard A. Sheridan, Petitioner v. Manuel de Jesus Ortega Melendres, et al.

No. 17-1041

d

IN THE

Supreme Court of the United States

GERARD SHERIDAN,

Petitioner,

—v.—

MANUEL DE JESUS ORTEGA MELENDRES, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

Cecillia D. Wang

Kathleen E. Brody

Counsel of Record

Brenda Muñoz Furnish

ACLU FOUNDATION OF ARIZONA Katrina L. Eiland

AMERICAN CIVIL LIBERTIES

3707 N. 7th Street, Suite 235

UNION FOUNDATION

Phoenix, AZ 85014

39 Drumm Street

Stanley Young

San Francisco, California 94111

COVINGTON & BURLING LLP

(415) 343-0782

333 Twin Dolphin Drive,

cwang@aclu.org

Suite 700

Redwood Shores, CA 94065

Attorneys for Respondents

(Counsel continued on inside cover)

David D. Cole

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street NW

Washington, DC 20005

Andre I. Segura

ACLU FOUNDATION OF TEXAS

1500 McGowen Street,

Suite 250

Houston, TX 77004

Anne Lai

401 E. Peltason, Suite 3500

Irvine, CA 92697

Julia A. Gomez

MEXICAN AMERICAN

LEGAL DEFENSE AND

EDUCATIONAL FUND

634 South Spring Street,

11th Floor

Los Angeles, CA 90014

COUNTERSTATEMENT OF QUESTIONS

PRESENTED

1.

Whether the court of appeals correctly

determined that the appeal by Petitioner, an

individual high-ranking law enforcement official who

was held in contempt of court, became moot once he

retired, because he no longer bore any obligation or

liability under the court’s contempt orders.

2.

Whether the court of appeals correctly

held that, under 42 U.S.C. § 1988, an appellant who

is no longer liable for compliance with a contempt

remedy may nonetheless be liable for a prevailing

party’s attorneys’ fees if the appellant appeals from

the judgment, thereby forcing the prevailing party to

defend its victory.

i

CORPORATE DISCLOSURE STATEMENT

In accordance with United States Supreme

Court Rule 29.6, Respondents make the following

disclosures:

1)

Respondent Somos

America Coalition does not

corporation.

America/We Are

have a parent

2)

No publicly held company owns ten

percent or more of the stock of Respondent Somos

America/We Are America Coalition.

ii

TABLE OF CONTENTS

COUNTERSTATEMENT OF QUESTIONS

PRESENTED .......................................................... i

CORPORATE DISCLOSURE STATEMENT ............ ii

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

STATEMENT OF THE CASE .................................... 1

I. Introduction ...................................................... 1

II. Prior Proceedings in the Underlying Civil

Rights Lawsuit ................................................. 2

III. Contempt Proceedings Below ......................... 4

IV. Criminal Contempt Referral and Arizona

Peace Officer Standards and Training

Board Investigation.......................................... 7

V. Proceedings in the Court of Appeals ............... 8

A. The Court of Appeals’ Dismissal of

Sheridan’s Appeal as Moot ......................... 8

B. The Court of Appeals’ Approval of

Attorneys’ Fees Incurred in Defending

Relief for the Plaintiff Class ..................... 12

REASONS FOR DENYING THE PETITION ......... 13

I. THE NINTH CIRCUIT’S MOOTNESS

RULING CORRECTLY APPLIED

SETTLED AND UNIFORM LAW. ................ 13

II. BECAUSE PETITIONER RELIES ON

NEW FACTS RAISED FOR THE FIRST

TIME ON HIS PETITION FOR

REHEARING, THIS CASE DOES NOT

WARRANT THIS COURT’S REVIEW. ......... 23

iii

III. THE NINTH CIRCUIT’S RULING ON

ATTORNEYS’ FEES CORRECTLY

APPLIED SETTLED AND UNIFORM

LAW. ............................................................... 25

IV. THIS CASE PRESENTS UNIQUE FACTS

AND NO IMPORTANT LEGAL ISSUE

WARRANTING THE COURT’S REVIEW. ... 28

CONCLUSION.......................................................... 30

iv

TABLE OF AUTHORITIES

Cases

Armster v. U.S. Dist. Court for Cent. Dist. of Cal.,

806 F.2d 1347 (9th Cir. 1986) .............................. 24

Brat v. Personhuballah,

883 F.3d 475 (4th Cir. 2018) …………………. 26, 27

Charles v. Daley,

846 F.2d 1057 (7th Cir. 1988)…………………25, 28

Cutter v. Wilkinson,

544 U.S. 709 (2005) .............................................. 24

Danos v. Jones,

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

Foretich v. United States,

351 F.3d 1198 (D.C. Cir. 2003)....................... 18, 21

Geier v. Richardson,

871 F.2d 1310 (6th Cir. 1989) .................. 26, 27, 28

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

341 F.3d 155 (2d Cir. 2003) ............................ 21, 22

In re Grand Jury Subpoena Duces Tecum,

91–02922, 955 F.2d 670 (11th Cir. 1992) ............. 14

Indep. Fed’n of Flight

Attendants v. Zipes,

491 U.S. 754 (1989) ........................................ 26, 27

Jackson v. California Dep’t of Mental Health,

399 F.3d 1069 (9th Cir. 2005) ........................ 15, 19

Johnson v. City of Aiken,

278 F.3d 333 (4th Cir. 2002) ................................ 28

Kentucky v. Graham

473 U.S. 159 (1985) ................................... 25, 27, 28

v

Lawn v. U.S.,

355 U.S. 339 (1958) .............................................. 24

Lebron v. Rumsfeld,

670 F.3d 540 (4th Cir. 2012) .......................... 19, 23

Leu v. Int’l Boundary Comm’n,

605 F.3d 693 (9th Cir. 2010) .......................... 11, 16

Maricopa Cty. v. Melendres,

136 S. Ct. 799 (2016) .............................................. 3

McBryde v. Comm. to Review Circuit Council

Conduct & Disability Orders of Judicial

Conference of U.S.,

264 F.3d 52 (D.C. Cir. 2003).......................... passim

McClellan v. Carland,

217 U.S. 268 (1910) .............................................. 24

McWilliams v. Dunn,

137 S. Ct. 1790 (2017) .......................................... 24

Melendres v. Arpaio,

989 F. Supp. 2d 822 (D. Ariz. 2013) ....................... 3

Melendres v. Arpaio,

No. CV-07-02513, 2013 WL 5498218

(D. Ariz. Oct. 2, 2013) .............................................. 3

Melendres v. Arpaio,

No. CV-07-2513, 2016 WL 2783715

(D. Ariz. May 13, 2016) ........................................... 3

Melendres v. Arpaio,

No. CV-07-2513, 2016 WL 3996453

(D. Ariz. July 26, 2016)............................................ 3

Melendres v. Arpaio,

695 F.3d 990 (9th Cir. 2012) ................................... 3

Melendres v. Arpaio,

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

vi

Nat. Res. Def. Council v. Gutierrez,

457 F.3d 904 (9th Cir. 2006) .......................... 15, 16

OBB Personenverkehr AG v. Sachs,

136 S. Ct. 390 (2015) ............................................ 24

Ortega-Melendres v. Arpaio,

836 F. Supp. 2d 959 (D. Ariz. 2011) ....................... 3

Sandidge v. State of Wash.,

813 F.2d 1025 (9th Cir. 1987) .............................. 16

Spencer v. Kemna,

523 U.S. 1 (1998) ........................................... passim

St. Pierre v. United States,

319 U.S. 41 (1943) ................................................ 18

Union of Prof’l Airmen v. Alaska Aeronautical

Indus., Inc.,

625 F.2d 881, 884 (9th Cir. 1980) ............ 10, 14, 15

United States v. Probber,

170 F.3d 345 (2d Cir. 1999) .................................. 19

Statutes

18 U.S.C. § 401 ............................................................ 7

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

Other Authorities

Federal Rule of Appellate Procedure 27 .................. 10

vii

STATEMENT OF THE CASE

I.

Introduction

Petitioner Gerard Sheridan (“Petitioner” or

“Sheridan”) was held in contempt of court while he

was Chief Deputy of the Maricopa County Sheriff’s

Office (“MCSO”), the highest-ranking official in the

office after the Sheriff.

The civil contempt

proceedings took place after protracted civil rights

litigation in which Respondents, the Plaintiff Class

below,1 prevailed in proving that MCSO’s policies

and practices under then-Sheriff Joseph Arpaio

violated the Fourth and Fourteenth Amendment

rights of Latinos by subjecting them to a practice of

unconstitutional and discriminatory traffic stops.

Following a lengthy contempt trial, the district court

found that Sheridan had committed two separate

instances of contempt by intentionally and knowingly

violating the court’s preliminary injunction and posttrial order to collect and preserve traffic stop

recordings that the defendants had failed to turn

over before trial, in violation of their pretrial

discovery obligations. The district court also found

that there were systemic defects in MCSO’s policies

and practices that enabled Petitioner to evade

accountability for violating the court’s orders, and

subsequently ordered injunctive relief as a remedy

for the contempt and to prevent a recurrence of these

violations.

Petitioner joined then-Sheriff Arpaio and

Joseph Sousa, another MCSO official who had been

1 Respondents Manuel de Jesus Ortega Melendres, et al., were

Plaintiffs-Appellees below and are referred to herein as

“Plaintiffs,” “the Plaintiff Class,” or “Respondents.”

1

held in contempt, in appealing from the contempt

judgment. Notably, however, the appellants did not

attack the accuracy of the district court’s findings;

indeed, prior to the contempt trial Arpaio and

Petitioner had admitted most of the underlying facts

and primarily disputed whether their contempt had

been willful or merely negligent.

Petitioner

subsequently retired from MCSO, after which he no

longer had any responsibility or liability under any of

the court’s contempt orders.

After Arpaio was

succeeded in office by Sheriff Paul Penzone, Penzone

in his official capacity as the new sheriff and the

third official withdrew their appeals, but Petitioner

carried on.

Because Petitioner had no responsibilities or

liabilities under the district court’s contempt orders

following his retirement, the Ninth Circuit dismissed

his appeal as moot in an unpublished, nonprecedential order. The Ninth Circuit also ruled that

because Petitioner had forced Plaintiffs to defend the

remedy they had obtained below, Plaintiffs were

entitled to an award of attorneys’ fees and costs for

the appeal as the prevailing party under 42 U.S.C. §

1988.

II.

Prior Proceedings in the Underlying

Civil Rights Lawsuit

The petition concerns remedial measures

imposed as part of a decade-long civil rights

litigation challenging unconstitutional policing

practices in Maricopa County, Arizona. Respondents

filed the lawsuit in 2007 against then-Sheriff Joseph

Arpaio (the “Sheriff” or “Arpaio”) in his official

capacity, the Maricopa County Sheriff’s Office

(“MCSO”), and Maricopa County. The amended

2

complaint alleged that the defendants were

systematically violating the Fourth and Fourteenth

Amendment rights of Plaintiff Class members by

targeting them for traffic stops because they are

Latino, and detaining them without reasonable

suspicion of criminal activity. ER 938-68.2

Over more than ten years, Respondents

prevailed in two bench trials and secured four

injunctions. See Ortega-Melendres v. Arpaio, 836 F.

Supp. 2d 959, 992 (D. Ariz. 2011) (preliminary

injunction order prohibiting MCSO from detaining

people based solely on suspicion of being in the

United States without lawful status), aff’d, 695 F.3d

990 (9th Cir. 2012); Melendres v. Arpaio, 989 F.

Supp. 2d 822 (D. Ariz. 2013) (finding defendants’

policies and practices violated the Fourth and

Fourteenth Amendment rights of the Plaintiff Class

and issuing permanent injunction), aff’d, 784 F.3d

1254 (9th Cir. 2015); Melendres v. Arpaio, No. CV-0702513, 2013 WL 5498218 (D. Ariz. Oct. 2, 2013)

(supplemental permanent injunction appointing

monitor and imposing additional reforms), aff’d, 784

F.3d 1254 (9th Cir. 2015);3 Melendres v. Arpaio, No.

CV-07-2513, 2016 WL 2783715 (D. Ariz. May 13,

2016) (findings of fact following bench trial on civil

contempt); Melendres v. Arpaio, No. CV-07-2513,

2016 WL 3996453 (D. Ariz. July 26, 2016) (second

supplemental

injunction

following

contempt

proceedings).

“ER” refers to Appellants’ Excerpts of Record filed in the

appeal below, Melendres v. Arpaio, No. 16-16663 (9th Cir. Dec.

27, 2016), Doc. 12-1 to12-5.

3 This Court denied Maricopa County’s petition for a writ of

certiorari in Maricopa Cty. v. Melendres, 136 S. Ct. 799 (2016).

2

3

III.

Contempt Proceedings Below

This petition arises from a civil contempt

proceeding, which came about as a result of post-trial

revelations that the Sheriff, Petitioner, and other

MCSO officials had repeatedly violated the district

court’s preliminary injunction order, had flouted

their pre-trial discovery obligations to turn over

recordings of traffic stops and, when those discovery

violations came to light long after trial, then violated

the district court’s post-trial order regarding the

collection and preservation of the recordings. ER

570-96. The contempt proceedings also followed

repeated instances in which Petitioner, the Sheriff,

and other MCSO officials disparaged the district

court’s orders to MCSO’s rank-and-file deputies.

Petitioner, for example, appeared on a video

recording calling the court’s orders “ludicrous” and

“crap” while briefing MCSO deputies prior to a law

enforcement operation. ER 132.

On that record, Plaintiffs moved for an order

to show cause as to why Petitioner and other MCSO

officials should not be held in civil contempt. Dist.

Ct. Doc. 843.4 On February 12, 2015, the district

court issued an order identifying three possible

grounds of civil contempt: 1) failure to comply with

the district court’s preliminary injunction, 2)

violation of pretrial discovery obligations including

failure to issue document preservation notices and to

collect relevant video and audio recordings of traffic

stops, and 3) violation of the court’s separate order to

preserve relevant video and audio recordings of

4 Citations herein denoted “Dist. Ct. Doc.” are to docket in the

district court case, 07-cv-02513-PHX-GMS (D. Ariz.).

4

traffic stops after the discovery violations came to

light. ER 595.

Petitioner and Sheriff Arpaio admitted the

allegations in the order to show cause,

“acknowledg[ing] . . . that they have violated the

Court’s orders” and “consent[ing] to a finding of civil

contempt against them.” Dist. Ct. Doc. 948 at 1-2.

The district court concluded that a hearing remained

necessary to determine whether their conduct was

intentional and knowing, as such a determination

was relevant to the appropriate remedies. Dist. Ct.

Doc. 1007.

On May 13, 2016, following 21 days of

evidentiary hearings, the district court issued 162

pages of findings of fact, which detailed the conduct

of Petitioner and other MSCO officials. ER 68-229.

The district court found that Petitioner had admitted

to civil contempt for violating the court’s orders, and

had in fact intentionally and knowingly failed to

abide by the court’s preliminary injunction, as well

as the court’s post-trial order to collect and preserve

evidence responsive to Plaintiffs’ discovery requests.

ER 83-87, 107-10. Many of the district court’s

findings as to Petitioner related to his violation of the

court’s May 2014 post-trial evidence-preservation

order. The district court had ordered Petitioner, who

was present in the courtroom that day, to formulate

and obtain the Monitor’s approval of a plan to quietly

gather and preserve the evidence, in a manner

calculated to prevent its destruction or concealment

by MCSO deputies. ER 107-08. Sheridan affirmed

that he would personally ensure that the court’s

order was carried out. ER 108. However, on the

same day the court issued its oral order, Sheridan

directed another commander to send a mass email to

5

a large number of personnel requesting the evidence,

in violation of the district court’s direction that the

evidence be gathered “quietly,” without disclosing his

action to the Monitor, and while still engaged in

discussions with the Monitor about how best to carry

out the court’s order. ER 108-110.

The district court further found that Petitioner

had “demonstrated a persistent disregard” for its

orders, ER 70, and that Petitioner and other officials

manipulated MCSO’s internal affairs and discipline

process to avoid accountability for their violations of

court orders, ER 49, 70, 160, 166-67, 193-96.

Notably, Sheridan admitted the accuracy of

these allegations to his conduct before the

evidentiary hearing and has not contested—either in

the instant petition or in the court of appeals below,

9th Cir. Doc. 11—any of the district court’s findings

of fact. The only ground Petitioner submitted to the

Ninth Circuit to support his demand for vacatur of

the district court’s orders was that the district court

should have been recused. Id. at 43-57. Petitioner

has apparently abandoned his recusal argument in

his petition to this Court.

On July 26, 2016, after extensive briefing on

remedies, the district court issued the Second

Supplemental Injunction based on its equitable

remedial authority. ER 1-67. The district court

noted that “[h]ad [it] had access to the evidence

withheld by the MCSO and the evidence to which it

led, the Court would have entered injunctive relief

much broader in scope” following the original trial.

ER 3.

Among other remedies, the injunction

included reforms to MCSO’s internal affairs policies

and practices, which the court found suffered from

6

serious deficiencies that had allowed MCSO officials,

including Petitioner, to conceal and avoid

responsibility for violating the constitutional rights

of the Plaintiff Class. See e.g., ER 6.

The district court also ordered the creation of a

victim compensation fund by Maricopa County to

remedy MCSO’s contempt in violating the

preliminary injunction, which prohibited MCSO

deputies from detaining Plaintiff Class members

without suspicion of criminal activity. ER 305. The

district court declined to require Petitioner or other

individual contemnors to pay any compensation in

their individual capacities, noting that, instead,

victim compensation “is guaranteed” by the County.

ER 307.

Thus, none of the court’s contempt remedies

apply to Petitioner, or to any other contemnors, in an

individual capacity. See ER 1-67, 305-18. And

because of his retirement from MCSO, Petitioner is

no longer subject to any legal obligations or liabilities

under the district court’s orders.

IV.

Criminal Contempt Referral and

Arizona Peace Officer Standards and

Training Board Investigation.

The district court subsequently referred the

Sheriff and Petitioner pursuant to 18 U.S.C. § 401

and Federal Rule of Criminal Procedure 42 for “a

determination of whether [they] should be held in

criminal contempt.” ER 273, 274. The court did not

make any finding that Petitioner had in fact engaged

in criminal conduct. The judge to whom the matter

was referred issued an order to show cause as to

Arpaio only and later dismissed Petitioner from the

criminal contempt proceedings on statute-of7

limitations grounds. See United States v. Arpaio, No.

2:16-cr-01012 (D. Ariz. Dec. 13, 2016), Doc. No. 60.5

Following the criminal contempt referral, the

Arizona Peace Officer Standards and Training Board

(“AZPOST”)

initiated

an

investigation

into

Petitioner’s conduct to evaluate the propriety of any

disciplinary action against him. Dist. Ct. Doc. 2009,

2009-1.

To Respondents’ knowledge, that

independent investigation is ongoing.

V.

Proceedings in the Court of Appeals

A. The Court of Appeals’ Dismissal of

Sheridan’s Appeal as Moot

On September 16, 2016, Sheriff Arpaio,

Petitioner, and Joseph Sousa filed an appeal from

the Second Supplemental Injunction.

In their

opening brief, they maintained that certain

injunctive relief measures imposed on the Sheriff and

Maricopa County by the Second Supplemental

Injunction exceeded the district court’s authority.

9th Cir. Doc. 11 at 3.6 They sought an order

requiring recusal and reassignment of the case below

to a different district judge and a new courtappointed monitor. Id. And they sought vacatur of

the entire Second Supplemental Injunction and the

district court’s findings of fact, based solely upon

their recusal theory. Id. at 43-59. They did not

otherwise challenge the validity or accuracy of any of

the district court’s findings of fact. Id.

5 Arpaio was convicted of criminal contempt after trial, but the

President pardoned him prior to sentencing.

6 Docket citations herein denoted “9th Cir. Doc.” are to the

docket in the appeal below, Melendres et al. v. Arpaio, No. 1616663 (9th Cir.).

8

However, by the time his appeal was pending,7

Sheridan had retired from MCSO. Dist. Ct. Doc.

1987 at 4 n.2. Meanwhile, on November 6, 2016,

Sheriff Arpaio lost his re-election bid, and on

January 1, 2017, Sheriff Paul Penzone took office.

On February 9, 2017, Sheriff Penzone filed a notice of

substitution for Arpaio in the Ninth Circuit,

removing Arpaio from the appeal. 9th Cir. Doc. 23,

25. On April 26, 2017, the Court granted Sheriff

Penzone’s unopposed motion to withdraw his appeal,

leaving only Petitioner and Sousa as appellants. 9th

Cir. Doc. 29.

Sousa, who also had retired from MCSO,

subsequently moved for his own withdrawal from the

appeal, which the court of appeals granted on May

25, 2017. 9th Cir. Doc. 33, 34. Sousa also withdrew

from motions pending before the district court that

raised similar recusal issues. Dist. Ct. Doc. 2044.

Sousa cited a lack of standing based on his

retirement as the reason for withdrawal. Id. at 2.

After Sousa’s dismissal, Petitioner remained the only

appellant before the Ninth Circuit.

Like Sousa, Petitioner, also retired, no longer

had any role in MCSO’s implementation of the

remedial measures. Nor could Petitioner face any

employee discipline after his retirement, even if

internal investigations or investigations conducted

by the independent authorities appointed by the

district court revealed any misconduct on his part.

9th Cir. Doc. 50 at 12. And Petitioner was not held

liable for payment of compensation to contempt

The date of Sheridan’s retirement does not appear in the

record.

7

9

victims. ER 307. Thus, the Ninth Circuit could

grant no possible relief that would actually affect

Petitioner’s legal rights or liabilities. Plaintiffs and

the United States (as Plaintiff-Intervenor-Appellee)

therefore moved separately for dismissal of

Petitioner’s appeal pursuant to Federal Rule of

Appellate Procedure 27. 9th Cir. Doc. 38-1, 48-1. In

his responses, Petitioner conceded that, as a former

MCSO employee, he was not subject to any financial

liability or other legal obligations under the Second

Supplemental Injunction. See 9th Cir. Doc. 50, 52.

He vaguely referred to possible injury to his

reputation, but provided no allegations and pointed

to no evidence of any direct, concrete, and

redressable harms resulting from the district court’s

contempt findings or associated injunctive relief. 9th

Cir. Doc. 50 at 8-13, 52 at 7-10.

On August 3, 2017, in an unpublished, nonprecedential order, the court of appeals dismissed

Petitioner’s appeal as moot, finding that he had

incurred no personal liability as a result of the

district court’s civil contempt finding and that, as a

former employee, his interest in the injunctive relief

was mooted by his retirement. See App. 7a-8a (citing

Union of Prof’l Airmen v. Alaska Aeronautical Indus.,

Inc., 625 F.2d 881, 884 (9th Cir. 1980)).

Petitioner

averred

various

“collateral

consequences” in an attempt to defeat mootness, all

of which the court found wanting. It reasoned that

absent any legal effect from the underlying orders,

Petitioner’s

unsubstantiated

assertions

of

reputational harm were, standing alone, “insufficient

to save his appeal from mootness.” App. 8a. It

rejected Petitioner’s argument that the district

court’s criminal contempt referral presented a

10

cognizable harm, as the referral had already been

dismissed as to Petitioner. Id. It concluded that any

harm that might result from AZPOST’s independent

investigation was not redressable because the

investigation’s

resolution

depended

“on

the

unfettered choices made by independent actors not

before the courts.” Id. (quoting Leu v. Int’l Boundary

Comm’n, 605 F.3d 693, 695 (9th Cir. 2010)) (internal

quotation marks omitted). And it dismissed as

entirely

speculative

Petitioner’s

unsupported

assertions that the district court’s actions interfered

with his ability to procure employment. Id.

Petitioner filed a petition for panel rehearing

on September 18, 2017. 9th Cir. Doc. 58. With the

petition, he submitted a new declaration on his own

behalf, asserting for the first time that he was

interested in future employment. See Appendix E.

Sheridan asserted that in dismissing his appeal as

moot, the panel had “overlooked critical facts” that

established various collateral injuries, even though

those “facts” were not before the court of appeals

when it dismissed his appeal, because he did not

submit them until he filed his petition for rehearing.

9th Cir. Doc. 58 at 3. In his petition for certiorari,

Petitioner misleadingly asserts that his “reputational

harm is well-documented in the record, and is not in

any way disputed.” Pet. 21. In reality, his only

proffer of reputational harm was provided after

dismissal of his appeal and was not properly in the

record.

The court of appeals ordered the United States

as Plaintiff-Intervenor to respond to Sheridan’s

petition for rehearing. The United States submitted

a response arguing that Sheridan’s declaration was

not properly in the record and that the petition did

11

not identify any facts or points of law that the court

of appeals overlooked or misapprehended. 9th Cir.

Doc. 64. The panel voted unanimously to deny the

petition for panel rehearing and, accordingly, denied

the petition on October 27, 2017. App. 11a.

B. The Court of Appeals’ Approval of

Attorneys’

Fees

Incurred

in

Defending Relief for the Plaintiff

Class

After securing dismissal of Petitioner’s appeal,

Respondents filed an application for attorneys’ fees

for the successful defense of Petitioner’s challenge to

the injunctive relief. 9th Cir. Doc. 67. The court of

appeals granted the application, concluding that

Respondents were the prevailing party “within the

meaning of section 1988 in every sense,” having

obtained an injunction in the district court and an

order dismissing Sheridan’s appeal. App. 3a.

The court of appeals rejected Petitioner’s

argument that he could not be held liable for any fee

award because he did not incur liability in his

personal capacity in the underlying lawsuit. The

Ninth Circuit held that the case Sheridan cited, in

which an immune nonparty government entity was

held not to be liable for a prevailing party’s fees

incurred in securing a judgment against government

employees in their personal capacities, was

distinguishable under the circumstances. App. 3a4a. It observed that, in this case, Sheridan was an

active participant in the litigation—disobeying the

district court’s orders, including the preliminary

injunction, and then “actively insert[ing] himself into

the litigation by appealing” the district court’s relief

12

benefiting the Plaintiff Class—and therefore could be

liable for fees on that appeal. App. 4a.

REASONS FOR DENYING THE PETITION

The petition should be denied. Petitioner has

identified no decision from any court that is in

conflict with the Ninth Circuit’s conclusion that his

appeal was moot because he bore no continuing

liability or obligation under the district court’s

orders. The court’s non-precedential order is a

straightforward application of well-settled mootness

principles, resulting in a fact-specific conclusion that

does not warrant this Court’s review. In addition,

the petition should be rejected because it relies on

extra-record facts belatedly asserted in a declaration

filed with the petition for rehearing, and that did not

form any part of the decision as to which Petitioner

seeks review. There is likewise no split of authority

on the question of liability for attorneys’ fees on

appeal where, as here, a nonparty contemnor, found

to have violated the constitutional rights of the

plaintiff class, injects himself into a lawsuit by

appealing from the prevailing party’s judgment,

forcing the prevailing party to defend its victory.

Finally, the unique posture of the case means that

resolution of either issue is unlikely to affect other

litigants.

I.

THE NINTH CIRCUIT’S MOOTNESS

RULING

CORRECTLY

APPLIED

SETTLED AND UNIFORM LAW.

Petitioner asserts that the decision below

created a circuit split. But there is no conflict. The

court of appeals correctly applied settled and uniform

law on mootness to hold that an appeal becomes

moot if the decision appealed from no longer has any

13

legal effect on the appellant. Petitioner claims a split

in circuit authority on the significance of asserted

reputational injury, but the courts are also uniform

in this regard, holding, as did the court here, that

secondary effects on an individual’s reputation

cannot save an appeal where the challenged action

no longer has any tangible legal consequences for the

appellant. See, e.g., Spencer v. Kemna, 523 U.S. 1,

14-16, 16 n.8 (1998); McBryde v. Comm. to Review

Circuit Council Conduct & Disability Orders of

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

Cir. 2003). Accordingly, there is no split in the

circuits, and Petitioner’s disagreement is with the

application of well-settled law.

1. The court of appeals correctly concluded that

Petitioner’s appeal was moot once he retired from

MCSO, because he no longer had any legal

obligations flowing from the civil contempt orders

that he challenged on appeal. Petitioner was held in

contempt only in his official capacity as an individual

high-ranking employee of the defendant. Although

he was bound originally by the injunction “insofar as

it imposed obligations on the Maricopa County

Sheriff’s Office,” the court of appeals correctly

concluded that “his subsequent retirement mooted

that interest.” App. 7a.

In so holding, the Ninth Circuit applied the

settled principle that a nonparty’s standing to appeal

from a civil contempt order is restricted to

circumstances in which the nonparty is required to

comply with coercive remedies or to pay

compensation. See App. 7a-8a (citing Union of Prof’l

Airmen, 625 F.2d at 884); see also In re Grand Jury

Subpoena Duces Tecum, 91–02922, 955 F.2d 670, 672

(11th Cir. 1992) (holding that for “purely coercive

14

civil contempt, a contemnor’s compliance . . . moots”

any challenge to the “contempt adjudication”). In

Union of Professional Airmen, for example, a

nonparty corporate president’s appeal of a civil

contempt order was moot where both he and the

corporate entity were found to be in civil contempt

and ordered to pay a coercive fine, but the corporate

entity had paid the entirety of the fine. 625 F.2d at

882-84. Like the nonparty appellant in Union of

Professional Airmen, Sheridan’s retirement “relieved

[him] . . . of any liability under the contempt order”

and consequently he had “no interest in” securing

relief from it. Id. at 884. The court of appeals also

concluded that Sheridan did not have standing in the

first instance “to ‘seek appellate excision of the

district court’s ruling’ that he committed civil

contempt.’” App. 8a (quoting Nat. Res. Def. Council

v. Gutierrez, 457 F.3d 904, 906 (9th Cir. 2006)). That

is because a litigant does not have standing to

“challenge the district court’s legal rulings in the

abstract,” untethered from any cognizable stake in

the ordered relief.

Id.

Accordingly, Sheridan

retained no live interest in the appeal. He cites no

case from this Court or any other that holds

otherwise.

2. The Ninth Circuit also applied settled law

in rejecting Sheridan’s argument that his appeal

remained live because of the contempt orders’ alleged

collateral consequences.

The court carefully

analyzed whether Sheridan had any “concrete and

continuing injury” arising from the court’s contempt

relief, but found that he did not.

Jackson v.

California Dep’t of Mental Health, 399 F.3d 1069,

1073 (9th Cir. 2005) (quoting Spencer, 523 U.S. at 7)

(internal quotation marks omitted).

15

Sheridan cited a referral for criminal contempt

proceedings,

an

investigation

by

AZPOST,

unsubstantiated harm to his reputation, and possible

interference

with

employment

as collateral

consequences of the civil contempt orders. The court

of appeals correctly rejected each asserted harm. See

App. 8a. The district court’s criminal contempt

referral carried no legal consequences, as Sheridan

had been dismissed from those proceedings on

statute-of-limitations grounds. Id. The AZPOST

investigation was “an independent investigation

whose resolution ‘depends on the unfettered choices

made by independent actors not before the courts.’”

Id. (quoting Leu, 605 F.3d at 694). And Sheridan’s

asserted reputational injury was at most a secondary

effect of an order with no continuing legal

consequences. Any reputational harms were not

concrete, fairly traceable to the district court’s

orders, or redressable by a ruling in his favor.

Sheridan admitted to contempt and did not challenge

the accuracy of the court’s findings. And under

settled law, he had no standing to seek vacatur of the

district court’s contempt findings in the abstract,

unconnected to any interest in reversing the

resulting injunction. See Nat. Res. Def. Council, 457

F.3d at 906. Thus, to the extent the district court’s

contempt findings were the source of Sheridan’s

reputational harm, the injury was not redressable

through his appeal.

Finally, Sheridan’s suggestion that the

contempt orders could interfere with his efforts to

obtain future employment was entirely speculative,

as he had failed to identify “even one such job” for

which he had actually applied. App. 8a (quoting

Sandidge v. State of Wash., 813 F.2d 1025, 1026 (9th

16

Cir. 1987)) (finding that “speculative claims of

hardship” are insufficient to demonstrate “that an

opportunity to provide meaningful relief still exists”);

see also Spencer, 523 U.S. at 10-11 (observing that it

is a “long-settled principle that standing cannot be

inferred argumentatively from averments in the

pleadings, but rather must affirmatively appear in

the record, and that it is the burden of the party who

seeks the exercise of jurisdiction in his favor, clearly

to allege facts demonstrating that he is a proper

party to invoke judicial resolution of the dispute”)

(internal quotation marks omitted).

3. The court of appeals’ dismissal order is

fully consistent with this Court’s and other circuits’

precedents, which uniformly require that, to avoid

dismissal based on mootness where an order no

longer imposes any legal obligations, a party must

identify a concrete collateral injury that is fairly

traceable to the challenged action and redressable by

a ruling in its favor. See Spencer, 523 U.S. at 14-16.

The petitioner in Spencer, as here, asserted that his

appeal was not moot, even though the order appealed

from no longer imposed any legal liabilities, because

it might adversely affect him in the future. Id.

Spencer rejected that contention, and held that

although the challenged court order (a parole

revocation) carried some moral stigma, the asserted

collateral harms must be concrete and flow from the

order “as a matter of law” in order to save an appeal

from mootness. Id. at 8-9. Responding to the

petitioner’s assertion that the parole revocation order

might be used against him if he were ever a

defendant in a criminal case again, the Court found

that the asserted harm was not only speculative, but

that it was “at least as likely that the conduct

17

underlying the revocation, rather than the revocation

[order] itself . . . would be used” against him. Id. at

16. The court of appeals’ ruling here follows directly

from Spencer.

The Ninth Circuit’s order is also consistent

with this Court’s decision in St. Pierre v. United

States, 319 U.S. 41 (1943), which held that, once the

petitioner served a sentence for criminal contempt,

his appeal was moot: the underlying injury of

imprisonment was not redressable, because even

reversing the contempt judgment could not “undo

what has been done or restore to petitioner the

penalty of the term of imprisonment which he has

served” and no further legal penalties or disabilities

could be imposed on him as a result of the contempt

judgment.

Id. at 42-43.

Rejecting petitioner’s

invocation of continuing stigma stemming from the

contempt finding, the Court concluded that, without

more, “the moral stigma of a judgment which no

longer affects legal rights does not present a case or

controversy for appellate review.” Id. at 43 (emphasis

added). Just so here, once Sheridan retired, the

contempt injunction had no legal consequences for

him, and a mere desire to vindicate his reputation

was not sufficient to save the appeal from mootness.

The Ninth Circuit’s decision is also consistent

with the decisions of other lower courts, which all

recognize that a claim of reputational injury, without

more, is insufficient to rescue an otherwise moot

appeal. See, e.g., McBryde, 264 F.3d at 57 (“[W]hen

injury to reputation is alleged as a secondary effect of

an otherwise moot action, [courts] have required that

‘some tangible, concrete effect’ remain, susceptible to

judicial correction.”); Foretich v. United States, 351

F.3d 1198, 1212-13 (D.C. Cir. 2003) (“[W]here

18

reputational injury is the lingering effect of an

otherwise moot aspect of a lawsuit . . . the injury

cannot satisfy the requirements of Article III.”);

accord Jackson, 399 F.3d at 1075 (finding that, by

itself, “reputation is not a sufficient interest to avoid

mootness”); Danos v. Jones, 652 F.3d 577, 584 (5th

Cir. 2011) (reputational harm that is “merely the

secondary effect of an injury that is otherwise moot”

does not rescue controversy from mootness) (internal

quotation marks omitted); Lebron v. Rumsfeld, 670

F.3d 540, 562 (4th Cir. 2012) (citing McBryde to

conclude

that

enemy

combatant’s

alleged

reputational harm was insufficient to save appeal

from mootness where detention as enemy combatant

had ended); United States v. Probber, 170 F.3d 345,

349 (2d Cir. 1999) (“Spencer rejected the notion that

the possibility of vindicating a reputational interest

of the sort asserted here was sufficient to avoid

mootness.”).

Petitioner is simply incorrect in asserting that

the Ninth Circuit’s 2005 opinion in Jackson, cited by

the court below, is at odds with the other circuits.

Jackson, like all the foregoing cases, holds that

collateral consequences can save an appeal from

dismissal on mootness grounds only if they are

“significant enough to satisfy the injury in fact

requirement for standing, and a decision invalidating

the [challenged] order would remedy those

continuing effects.” 399 F.3d at 1073. On that

standard, lower courts uniformly hold that a desire

to vindicate reputation, without more, is “not a

sufficient interest to avoid mootness.” Id. at 1075.

Sheridan’s objection appears to be that Jackson does

not recite the precise language found in the D.C.

Circuit’s decision in McBryde, but there is no

19

talismanic significance to that phrasing; both circuits

find reputational interest alone insufficient to avoid

mootness where the individual no longer faces

tangible legal consequences.

4. Petitioner attempts to fabricate a circuit split

by erroneously conflating two distinct circumstances:

(1) reputational harm that, under the circumstances,

constitutes a direct injury-in-fact from a still-live

controversy; and (2) moral stigma or reputational

harm that is a secondary byproduct of an action that

otherwise has no legal effect on the appellant. The

former supports a live claim; the latter does not. In

this case, the Ninth Circuit correctly found that the

order Sheridan appealed from no longer had any

cognizable legal effect on him in light of his

retirement, and therefore the only reputational harm

he cited was secondary in nature and insufficient,

standing alone, to save his otherwise moot appeal.

App. 8a.

Sheridan’s cited authorities actually highlight

this distinction.

In McBryde, the D.C. Circuit

considered various sanctions imposed on a sitting

district judge, including suspension from case

assignments for a limited period of time, and an

official, ongoing public reprimand posted on the

court’s website. McBryde, 264 F.3d at 54-55. The

court held that the appeal was moot as to the

suspension provisions because they had expired by

the time the appeal was heard. Any lingering

reputational harm from these suspensions was a

secondary effect and was not redressable. Id. at 55.

By contrast, the court held that the appeal on the

reprimand provision was still live because the Fifth

Circuit continued to post reports on the appellant’s

misconduct on the court website as a continuing

20

sanction, constituting a direct and ongoing harm to

the sitting judge’s reputation. Id. at 57. Here,

Sheridan faced no ongoing legal consequences upon

his retirement from MCSO, and therefore no longer

has any legal stake in the appeal. Any reputational

effects are merely secondary, as were the

reputational

effects

of

McBryde’s

expired

suspensions.

The D.C. Circuit drew the same distinction in

Foretich, dismissing as moot an appeal from a court

order denying the appellant visitation rights with his

child, based on findings that he was a child molester.

The court held that the appeal was moot because the

appellant’s child had turned 18 and the visitation

order therefore no longer had any legal effect. 351

F.3d at 1212-13.

The court rejected Foretich’s

argument that the order still caused him

reputational injury, noting that any such harm was

“merely the secondary effect of an injury [the bar on

visitation with his child] that is otherwise moot.” Id.

at 1212. Reinforcing the distinction between such

secondary effects and live claims based on an act

causing direct and ongoing cognizable injuries, the

D.C. Circuit held that the appellant did have

standing to raise his constitutional challenge under

the Bill of Attainder Clause to an act of Congress

that declared him to be a child predator, since the act

caused a direct injury and presented a live

controversy. Id. at 1214.

The decision below is also consistent with

Gully v. National Credit Union Administration

Board, 341 F.3d 155 (2d Cir. 2003), which simply

concluded that a direct reputational injury inflicted

by a government agency, with ongoing effects, was

sufficient to confer standing. The Second Circuit

21

held that a former credit union manager could appeal

an order of

the National

Credit

Union

Administration Board that found she had breached

her fiduciary duty and her conduct was sufficient to

sustain an order permanently prohibiting her from

employment with credit unions governed by the

Board. Id. at 161. Though the Board’s order did not

formally bar her from future employment, the Second

Circuit found that the order effectively did just that,

and that the Board could not insulate its decision

from review by avoiding a formal bar where its

decision imposed a direct injury by sounding a “death

knell” for the appellant’s future employment. Id. at

162. Here, by contrast, Petitioner faces no ongoing

legal obligations, and complains only about the

speculative secondary effects of the underlying

contempt findings on his reputation. No court has

found such secondary effects, standing alone,

sufficient to maintain a live appeal.

In sum, the instant case is consistent with all

of the decisions cited by Petitioner, because the civil

contempt orders here impose no direct, ongoing

sanction or liability against Petitioner that can be

remedied through appeal, and his asserted

reputational injuries are merely secondary effects of

orders that impose no legal consequences on

Petitioner.

Moreover, Sheridan has admitted to violating

the district court orders, consented to a finding of

civil contempt, and did not specifically contest any of

the underlying findings of fact on appeal.

Accordingly, even if Sheridan’s abstract assertion of

reputational harm could have saved his appeal from

mootness, the dismissal could be affirmed on the

grounds that Sheridan failed to show any

22

incremental harm from the district court’s orders, as

distinct from harm flowing from his own conceded

actions. See Spencer, 523 U.S. at 16; see also Lebron,

670 F.3d at 562 (explaining that “[t]he legally

relevant injury is only the incremental effect of” the

challenged action on the individual’s reputation)

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

quotation marks omitted).

II.

BECAUSE PETITIONER RELIES ON

NEW FACTS RAISED FOR THE FIRST

TIME ON HIS PETITION FOR

REHEARING, THIS CASE DOES NOT

WARRANT THIS COURT’S REVIEW.

This case is inappropriate for certiorari

because it improperly relies on new facts that

Petitioner belatedly and improperly sought to

introduce in the form of his own declaration

submitted for the first time in connection with his

petition for rehearing in the court of appeals. The

declaration seeks to support Petitioner’s assertions of

secondary reputational harms from the contempt

orders. As explained above, even assuming the

validity of those harms, they do not save his appeal

from mootness. But even if they were relevant, they

could not be considered by this Court because they

were untimely presented to the court of appeals, and

did not form any part of the decision on which

Petitioner seeks review.

The

Ninth

Circuit

properly

rejected

Sheridan’s untimely declaration as a basis for

rehearing. See 9th Cir. Doc. 65. Sheridan had

several prior opportunities to present evidence to

support a continued stake in the controversy—first in

filings before the district court (see Dist. Ct. Doc.

23

1987 (U.S. Mot. to Dismiss) and Doc. 2061), then in

response to Respondents’ and the United States’

motions to dismiss his appeal (see 9th Cir. Doc. 50,

52). He failed to do so. As the Ninth Circuit has

sensibly noted, “[c]onsideration of subsequent factual

occurrences is . . . beyond the scope of a petition for

rehearing.” Armster v. U.S. Dist. Court for Cent.

Dist. of Cal., 806 F.2d 1347, 1356-57 (9th Cir. 1986)

(citation omitted). The purpose of a petition for

rehearing is to correct errors in the decision; it is not

a vehicle to introduce previously undisclosed facts in

hopes of a different outcome.

This Court, too, generally does not consider

new evidence not properly presented to the courts of

appeals. McClellan v. Carland, 217 U.S. 268, 283

(1910) (“We must take the case as it is presented

here upon the stipulated return to the writ of

certiorari on the record as presented to the circuit

court of appeals.”); see also Lawn v. U.S., 355 U.S.

339, 354 (1958) (granting motion to strike evidence

not presented in certified record). Likewise, absent

unusual circumstances, this Court does not entertain

arguments not properly made in lower courts. OBB

Personenverkehr AG v. Sachs, 136 S. Ct. 390, 397

(2015). Because it is a “court of review, not of first

view,” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7

(2005), this Court has consistently refused to resolve

arguments not addressed by lower courts,

McWilliams v. Dunn, 137 S. Ct. 1790, 1801 (2017).

Thus, even if the decision below created a conflict

with other circuits, the petition does not properly

present the issue because it relies on Petitioner’s

untimely, speculative, and untested declaration.

24

III.

THE NINTH CIRCUIT’S RULING ON

ATTORNEYS’

FEES

CORRECTLY

APPLIED SETTLED AND UNIFORM

LAW.

Petitioner argues that the Ninth Circuit’s

decision below misapplies this Court’s decision in

Kentucky v. Graham, 473 U.S. 159 (1985), and

creates a conflict with Fourth Circuit precedent

“regarding whether a litigant is required to be liable

on the merits for a plaintiff’s underlying civil rights

claims before he can be found liable for attorneys’

fees pursuant to 42 U.S.C. § 1988(b).” Pet. 26. In

fact, the Ninth Circuit’s order, awarding fees against

a nonparty contemnor who forced the appellees to

defend the remedy they obtained in the district court

on appeal,8 is fully consistent with Graham, and

presents no conflict with the Fourth Circuit or any

other circuit court. The circuits have been uniform in

concluding that liability for attorneys’ fees on appeal

may be assessed against litigants who force plaintiffs

to defend their civil rights victories on appeal.

The courts of appeals have consistently found

that intervenors or nonparties who actively insert

themselves into a controversy by appealing a

prevailing party’s victory may be liable for the

prevailing party’s attorneys’ fees when they lose.

See, e.g., Charles v. Daley, 846 F.2d 1057, 1059-60,

1070 (7th Cir. 1988) (holding intervenors liable for

attorneys’ fees when they joined a suit to defend a

Although the petition repeatedly characterizes Sheridan’s

appeal as one intended merely to “clear his name,” Pet. 25, he

explicitly sought to vacate the substantial injunctive relief that

Respondents secured for the benefit of the Plaintiff Class. See

9th Cir. Doc. 11.

8

25

state abortion law and appealed after plaintiffs

prevailed in obtaining a preliminary injunction);

Geier v. Richardson, 871 F.2d 1310, 1311, 1315 (6th

Cir. 1989) (awarding fees against the United States,

which intervened and appealed from the parties’

consent decree, because the government forced the

plaintiffs to defend the remedy they obtained, and

therefore “may be fairly charged with the

consequences of its actions”). In both cases, the

appellants were assessed attorneys’ fees even though

they were not liable on the merits in the district

court action.9

9 Independent Federation of Flight Attendants v. Zipes, 491 U.S.

754 (1989), cited by Petitioner in passing, is inapposite, as it

concerned the liability of an “innocent intervenor” for fees under

Title VII. Id. at 764. In Zipes, the district court upheld a

settlement agreement between a class of employees and an

employer, against a challenge by an intervenor collective

bargaining unit (CBU) representing another class of employees.

The plaintiffs then sought fees against the intervenor CBU,

even though the CBU played no role in the Title VII violation.

This Court held that with respect to such “blameless

intervenors,” “district courts should . . . award Title VII

attorney’s fees against losing intervenors only where the

intervenors’ action was frivolous, unreasonable, or without

foundation.” Id. at 761. Brat v. Personhuballah, 883 F.3d 475

(4th Cir. 2018), which cites Zipes and was decided after the

petition was filed in this case, similarly holds only that fees

generally should not be assessed against “blameless”

intervenors. In Brat, the Fourth Circuit declined to award fees

against legislators who intervened to defend their district lines

against a racial gerrymandering challenge and then pursued an

appeal from the district court’s injunction when the defendant

state agency did not. Brat found that the legislator intervenors

were “blameless” (because they were not involved in creating

the racial gerrymander) and therefore applied Zipes. Id. at 481.

In the instant case, Sheridan was anything but blameless. He

was found to have intentionally and knowingly committed

26

Here, Sheridan violated the district court’s

preliminary injunction order protecting the Plaintiff

Class, chose to appeal from the district court’s orders,

sought to vacate a supplemental injunction

protecting the rights of the Plaintiff Class, and

thereby forced Plaintiffs to defend that judgment on

appeal. The Ninth Circuit properly held that he was

liable for attorneys’ fees because he “actively inserted

himself into the litigation by appealing.” App. 4a; see

also Geier, 871 F.2d at 1315 (a party that files an

appeal “may fairly be charged with the consequences

of its actions to overturn” a prevailing party’s

victory).

Sheridan argues that Kentucky v. Graham,

473 U.S. 159 (1985), establishes that a party can be

held responsible for attorneys’ fees under 42 U.S.C.

§1988 only if that party was also found liable on the

merits of the case. Pet. 27. But Graham does not

stand for such a broad rule, and its circumstances

are distinguishable.

In Graham, the plaintiffs

brought a damages action against several state and

local law enforcement officers in their personal

capacity only, 473 U.S. at 161-62, and named the

state as a defendant for the sole purpose of a

potential fee recovery, id. at 162. The Court held

that the state could not be held liable for attorneys’

fees because it had been dismissed as immune, and

plaintiffs prevailed only against an individual officer

in his personal capacity. Id. at 168-69. Graham is

inapposite because the state, the party against which

fees were sought, did nothing to bring fee liability

upon itself.

By contrast, Sheridan, like the

contempt of court, including based on violations of the

preliminary injunction, and thus Zipes and Brat are inapposite.

27

intervenors in Charles and Geier, brought the fee

liability upon himself through his own contempt of

court and subsequent litigation decisions.

Sheridan’s petition likewise mischaracterizes

the Fourth Circuit’s opinion in Johnson v. City of

Aiken, 278 F.3d 333 (4th Cir. 2002). Sheridan

asserts that the court in Johnson found that § 1988

fee liability can only be granted “against a defendant

who is first found to be liable on the merits of a

[plaintiff’s] claim.” Pet. 27. In fact, Johnson merely

examined the reasonableness of a fee award in light

of the circumstances of the case, overturning an

award of more than $98,000 in attorneys’ fees

against an officer who was found liable for only 35

cents in nominal damages, where the fee award was

based on the plaintiffs’ success on a separate state

law claim against a different defendant that resulted

in far more substantial damages. Id. at 337-38.

In sum, Sheridan’s appeal is distinguishable

from Graham and Johnson, and the Ninth Circuit’s

fee award is entirely in line with other circuits’

precedents, because Sheridan “actively inserted

himself into the litigation” by violating the district

court’s orders and then appealing the injunctive

relief for the benefit of the Plaintiff Class. App. 4a.

IV.

THIS CASE PRESENTS UNIQUE

FACTS AND NO IMPORTANT LEGAL

ISSUE WARRANTING THE COURT’S

REVIEW.

Finally, the writ should not issue because the

court of appeals’ unpublished, non-precedential

dismissal order and attorneys’ fees award are

unlikely to affect many other litigants, and present

no important legal question requiring this Court’s

28

resolution. This is an unusual case. Petitioner is a

nonparty who admitted to civil contempt but

nonetheless attempted to appeal a ruling in which he

concededly has no stake, other than alleged collateral

reputational harm, because of his retirement from

the defendant municipal agency.

When the district court below found Petitioner

in contempt, it made the defendant County, not any

individual employees, responsible for costs associated

with the contempt remedies. See ER 307. Petitioner

therefore had no financial stake, and any interest he

had as an official responsible for carrying out the

injunctive relief was mooted when he retired from

MCSO. App. 7a-8a. Petitioner nonetheless chose to

appeal to overturn the district court’s orders, and

only raised a speculative and wholly unsupported

(until his untimely submission of a declaration with

his petition for rehearing) claim of reputational harm

after Plaintiffs and the United States filed separate

motions to dismiss. Compare 9th Cir. Doc. 11 (Pet.’s

Opening Br.) with 9th Cir. Doc. 52 (Pet.’s Opp’n to

Mot. to Dismiss). Even after the two other former

officials in the same position abandoned their

appeals, Petitioner pressed on, attempting to vacate

the injunctive relief Plaintiffs had won—even though

he no longer had a legal stake in the outcome.

As these highly unusual circumstances are

unlikely to recur, the questions presented do not

merit the Court’s time and resources.

29

CONCLUSION

For the reasons stated above, the petition for a

writ of certiorari should be denied.

Respectfully Submitted,

Kathleen E. Brody

Brenda Muñoz Furnish

ACLU FOUNDATION OF

ARIZONA

3707 N. 7th Street,

Suite 235

Phoenix, AZ 85014

Stanley Young

COVINGTON & BURLING

LLP

333 Twin Dolphin Dr.,

Suite 700

Redwood Shores, CA

94065

Cecillia D. Wang

Counsel of Record

Katrina L. Eiland

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION

39 Drumm Street

San Francisco, CA 94111

(415) 343-0782

cwang@aclu.org

David D.Cole

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION

15 15th Street NW

Washington, DC 20005

Julia A. Gomez

MEXICAN AMERICAN

Andre I. Segura

ACLU FOUNDATION OF

LEGAL DEFENSE AND

TEXAS

EDUCATIONAL FUND

1500 McGowen Street,

Suite 250

Houston, TX 77004

Anne Lai

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30