Manuel De Jesus Ortega Melendr v. Maricopa County , 815 F.3d 645 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUEL DE JESUS ORTEGA No. 15-15996
MELENDRES; JESSICA QUITUGUA
RODRIGUEZ; DAVID RODRIGUEZ; D.C. No.
VELIA MERAZ; MANUEL NIETO, JR.; 2:07-cv-02513-
SOMOS AMERICA, GMS
Plaintiffs-Appellees,
v. OPINION
MARICOPA COUNTY,
Defendant-Appellant,
and
JOSEPH M. ARPAIO,
Defendant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted
January 12, 2016—Pasadena, California
Filed March 7, 2016
2 MELENDRES V. MARICOPA CTY.
Before: J. Clifford Wallace, Susan P. Graber,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Wallace
SUMMARY*
Civil Rights/Civil Procedure
The panel dismissed for lack of jurisdiction an appeal by
Maricopa County after determining that the appeal was not
timely filed.
Plaintiffs filed this class action against Sheriff Arpaio (in
his official capacity), Maricopa County, and Maricopa
County Sheriff’s Office alleging that defendants violated
federal law by racially profiling Latino drivers and passengers
and stopping them under the guise of enforcing federal and
state immigration laws. All of the parties later stipulated that
Plaintiffs would dismiss their claims against Maricopa
County without prejudice. On appeal from the district court’s
subsequent permanent injunction, this court in Melendres v.
Arpaio (Melendres II), 784 F.3d 1254, 1267 (9th Cir. 2015),
concluded that the Maricopa County Sheriff’s Office was
improperly named as a party and ordered that Maricopa
County be substituted in its place. Maricopa County then
filed the present appeal which purported to challenge four
district court orders entered between December 2011 and
April 2014.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MELENDRES V. MARICOPA CTY. 3
The panel held that Maricopa County’s appeal, filed
almost a year after the most recent order from which it
appealed, was untimely under 28 U.S.C. § 2107(a) and Fed.
R. App. P. 4(a)(1)(A), which require that an appeal be filed
within thirty days after entry of the judgment or order
appealed from. The panel rejected Maricopa County’s
arguments that it would be unfair to dismiss its appeal since
it became a party only as a result of the Melendres II decision
and therefore never had a chance to file a timely appeal. The
panel held that even if it agreed (and it did not) with
Maricopa County that the Melendres II opinion worked an
injustice by substituting the County for the Maricopa County
Sheriff’s Office, it would still have no authority to entertain
the appeal since the Supreme Court has made abundantly
clear that federal courts cannot “create equitable exceptions
to jurisdictional requirements.”
COUNSEL
Richard K. Walker (argued), Walker & Peskind, PLLC,
Scottsdale, Arizona, for Defendant-Appellant.
Stanley Young (argued) and Michelle L. Morin, Covington &
Burling LLP, Redwood Shores, California; Cecillia D. Wang,
ACLU Foundation Immigrants’ Rights Project, San
Francisco, California; Dan Pochoda, ACLU Foundation of
Arizona, Phoenix, Arizona; Andre Segura, ACLU Foundation
Immigrants’ Rights Project, New York, New York; Anne Lai,
Irvine, California; Jorge Martin Castillo, Mexican American
Legal Defense and Educational Fund, Los Angeles,
California, for Plaintiffs-Appellees.
4 MELENDRES V. MARICOPA CTY.
OPINION
WALLACE, Senior Circuit Judge:
Last year, we issued an opinion affirming (for the most
part) the district court’s decision to enter a permanent
injunction enjoining Sheriff Joseph M. Arpaio and the
Maricopa County Sheriff’s Office (MCSO) from conducting
racially discriminatory traffic stops. Melendres v. Arpaio
(Melendres II), 784 F.3d 1254, 1267 (9th Cir. 2015). In
addition to affirming the permanent injunction, we observed
that, during the ongoing litigation between the parties, the
Arizona Court of Appeals held that MCSO is a non-jural
entity, meaning that it cannot be subject to a lawsuit.
Braillard v. Maricopa Cty., 232 P.3d 1263, 1269 (Ariz. Ct.
App. 2010). That decision compelled us to conclude that “it
is now clear that MCSO has improperly been named as a
party in this action.” Melendres II, 784 F.3d at 1260. To
remedy that problem, we ordered that Maricopa County be
substituted in place of MCSO. Id. That substitution gave rise
to the present appeal by Maricopa County.
Maricopa County appeals from four district court orders
entered between December 2011 and April 2014, which are
the same orders that Sheriff Arpaio and MCSO appealed from
previously in Melendres II. A threshold issue that we must
consider is whether we have jurisdiction to hear the appeal,
since Maricopa County filed its notice of appeal almost a year
after the most recent order from which it appeals. This
attempted appeal is in obvious tension with the longstanding
rule that a party must file a notice of appeal within thirty days
“after entry of the judgment or order appealed from.” FED. R.
APP. P. 4(a)(1)(A). We conclude that the appeal is untimely
MELENDRES V. MARICOPA CTY. 5
under this general rule and, accordingly, we dismiss it for
lack of jurisdiction.
I.
The facts of this case may be found in detail in our prior
opinions on the matter: Melendres II, 784 F.3d at 1258–61;
Melendres v. Arpaio (Melendres I), 695 F.3d 990, 994–96
(9th Cir. 2012). Here, we recount only those facts that are
essential to dispose of the issues raised in this attempted
appeal.
Plaintiffs filed this class action against Sheriff Arpaio (in
his official capacity), Maricopa County, and MCSO, alleging
that they violated federal law by racially profiling Latino
drivers and passengers and stopping them under the guise of
enforcing federal and state immigration laws. All of the
parties later stipulated, however, that Plaintiffs would dismiss
their claims against Maricopa County. The parties did so
because they believed, at that time, that “Defendant Maricopa
County is not a necessary party at this juncture for obtaining
the complete relief sought.” But the stipulation expressly
provided that the dismissal was “without prejudice to
rejoining Defendant Maricopa County as a Defendant in this
lawsuit at a later time if doing so becomes necessary to obtain
complete relief.” It is important to point out that, at the time
the parties agreed to dismiss Maricopa County, the Arizona
Court of Appeals had not yet held that MCSO is a non-jural
entity and therefore cannot be sued. It did so about a year
after the stipulated dismissal, in Braillard v. Maricopa
County, 232 P.3d 1263, 1269 (Ariz. Ct. App. 2010). Had that
decision been issued before Maricopa County’s dismissal, the
parties may well have decided that Maricopa County was a
necessary party.
6 MELENDRES V. MARICOPA CTY.
The case proceeded after Maricopa County’s dismissal
and, after a bench trial, the district court concluded that
Sheriff Arpaio and MCSO acted unconstitutionally and
permanently enjoined them from conducting the racially
discriminatory conduct. The court later supplemented its
permanent injunction order to require that the MCSO take a
variety of measures intended to discourage further
constitutional violations, such as: appointing an independent
monitor to assess and report on MCSO’s compliance with the
injunction, increasing the training of MCSO employees,
improving traffic-stop documentation, and developing an
early identification system for racial-profiling problems. An
appeal to our court followed, resulting in our decision in
Melendres II. There, we affirmed the entirety of the district
court’s permanent injunction orders, except for certain
provisions dealing with internal investigations and reports of
officer misconduct. Melendres II, 784 F.3d at 1267. As to the
problematic provisions, we remanded to the district court so
that it could tailor them more precisely to the constitutional
violations at issue. Id.
In this same appeal, MCSO challenged the district court’s
refusal to dismiss it as a party. It argued that because the
Arizona Court of Appeals held in Braillard, that MCSO was
a non-jural entity, it could not be sued. 232 P.3d at 1269. We
agreed and, accordingly, held that MCSO was improperly
named as a party. Melendres II, 784 F.3d at 1260. To assure
a meaningful remedy for the plaintiffs despite MCSO’s
dismissal, we ordered that “Maricopa County be substituted
as a party in lieu of MCSO.” Id.
Following the issuance of our decision, Maricopa County
filed a petition for panel rehearing or rehearing en banc. After
we denied the petition, Maricopa County petitioned the
MELENDRES V. MARICOPA CTY. 7
Supreme Court for writ of certiorari. The Court denied the
petition without comment. Maricopa Cty. v. Melendres, No.
15-376, 2016 WL 100382 (U.S. Jan. 11, 2016).
In addition to using the ordinary avenues for challenging
an appellate decision, Maricopa County filed the present
appeal on May 15, 2015, which purported to challenge
several of the district court’s orders. That is the appeal which
we address now.
II.
The threshold issue we must consider is whether we are
required to dismiss this appeal for lack of jurisdiction.
By statute, for an appeal to be considered timely it must
be filed “within thirty days after the entry of . . . judgment,
order or decree.” 28 U.S.C. § 2107(a). The Rules of Appellate
Procedure contain this same deadline, providing that: “In a
civil case . . . the notice of appeal required by Rule 3 must be
filed with the district clerk within 30 days after entry of the
judgment or order appealed from.” FED. R. APP. P. 4(a)(1)(A).
Since Maricopa County is the party seeking to invoke our
jurisdiction, it “has the burden of establishing that jurisdiction
exists.” Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d
1280, 1285 (9th Cir. 1977) (citing KVOS, Inc. v. Associated
Press, 299 U.S. 269, 278 (1936)). Carrying this burden is no
small matter, since “[t]he requirement of a timely notice of
appeal is mandatory and jurisdictional,” Munden v. Ultra-
Alaska Assocs., 849 F.2d 383, 386 (9th Cir. 1988) (citing
Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264 (1978)),
meaning that we are not at liberty to overlook a defect with
the notice of appeal no matter how compelling an appellant’s
argument may be. The thirty-day deadline serves an
8 MELENDRES V. MARICOPA CTY.
important purpose, which is “to set a definite point of time
when litigation shall be at an end, unless within that time the
prescribed application has been made; and if it has not, to
advise prospective appellees that they are freed of the
appellant’s demands.” Browder, 434 U.S. at 264 (quoting
Matton Steamboat Co. v. Murphy, 319 U.S. 412, 415 (1943)
(per curiam)).
Rule 4 does provide certain exceptions to and extensions
of the thirty-day time requirement, such as cases in which the
United States is a party, FED. R. APP. P. 4(a)(1)(B), and cases
in which a party files certain post-judgment motions, FED. R.
APP. P. 4(a)(4). We do not have authority, however, to create
additional exceptions based on our own sense of what is
equitable or fair. See Bowles v. Russell, 551 U.S. 205, 214
(2007) (repudiating the non-statutory “unique circumstances”
exception and holding that federal courts have “no authority
to create equitable exceptions to jurisdictional
requirements”).
This legal background compels the conclusion that we
must dismiss Maricopa County’s appeal as untimely. The
district court orders that Maricopa County has challenged in
its notice of appeal were issued years ago, between 2011 and
2014. By filing its notice of appeal on May 15, 2015,
Maricopa County’s appeal does not come close to complying
with the thirty-day deadline. The exceptions to the deadline
set out in Rule 4 are of no help either and Maricopa County
has never argued that any of them applies here. Because the
County’s notice of appeal is untimely and no exceptions to
the deadline apply, it has not carried its burden of invoking
our jurisdiction and we must dismiss this appeal.
MELENDRES V. MARICOPA CTY. 9
Maricopa County offers several arguments in support of
its assertion that we should consider the merits of its appeal,
but none is persuasive. First, it argues that its appeal is timely
because its notice of appeal was filed within thirty days after
we issued our opinion in Melendres II. The novelty of this
argument is best illustrated by the fact that Maricopa County
offers no supporting authority for it. Nothing in 28 U.S.C.
§ 2107(a) or Rule 4(a) allows a party to appeal from an
appellate decision with which it disagrees. Moreover, that the
County filed its appeal within thirty days of our Melendres II
decision is irrelevant because, under Rule 4(a), an appeal
must be filed “within 30 days after entry of the judgment or
order appealed from.” As the County specified in its notice of
appeal, the orders “appealed from” here are the district
court’s orders entered between 2011 and 2014. Therefore, it
makes no difference that the County filed its notice of appeal
within thirty days of our Melendres II decision.
Second, Maricopa County argues that it would be unfair
for us to dismiss its appeal since it became a party only as a
result of our Melendres II decision and therefore never had a
chance to file a timely appeal. Essentially, it argues that it
would be unfair to hold it to the thirty-day deadline since it
was not actively participating in the case at the time it would
have needed to file its appeal. This argument fails for
multiple reasons.
For one, there is no unfairness in holding Maricopa
County to its earlier stipulation that it would be rejoined “as
a Defendant in this lawsuit at a later time if doing so becomes
necessary to obtain complete relief.” Because of the Arizona
Court of Appeals’ decision in Braillard, it became necessary
that the County be rejoined as a defendant. By agreeing to be
rejoined in this case should it become necessary, Maricopa
10 MELENDRES V. MARICOPA CTY.
County cannot now argue that it was unfair to hold it to its
stipulation.
Apart from the stipulation agreement, the position
Maricopa County takes in its briefs demonstrates the illusory
nature of its claim of unfairness. In its opening brief, the
County submits that it “does not object to, or seek any
modification of, the prohibitory provisions (i.e., the
provisions proscribing certain law enforcement practices the
district court found to be unconstitutional) in the district
court’s injunction orders.” Instead, it requests only that we
strike down “[a]ll affirmative mandates in the injunctive
orders entered by the district court.” Yet, in the very same
paragraph, it concedes that it is required, by Arizona state
statute, “to provide funding for the massive changes the
district court has imposed.” See ARIZ. REV. STAT. § 11-444.
Thus, the County has conceded that even if we had never
substituted it in place of MCSO, it would have nonetheless
had to bear the financial costs associated with complying with
the district court’s injunction. Given that concession, there is
no argument that our substitution of it into the case in
Melendres II saddled it with obligations that it would not
otherwise have had.
Further, under the Supreme Court’s decisions interpreting
42 U.S.C. § 1983, “[i]f the sheriff’s actions constitute county
‘policy,’ then the county is liable for them.” McMillian v.
Monroe Cty., 520 U.S. 781, 783 (1997) (citing Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). Arizona state
law makes clear that Sheriff Arpaio’s law-enforcement acts
constitute Maricopa County policy since he “has final
policymaking authority.” Flanders v. Maricopa Cty., 54 P.3d
837, 847 (Ariz. Ct. App. 2002); see Ariz. Rev. Stat. § 11-
441(A) (requiring the sheriff to “[p]reserve the peace,”
MELENDRES V. MARICOPA CTY. 11
“[a]rrest . . . all persons who attempt to commit or who have
committed a public offense,” and “[p]revent and suppress all
affrays, breaches of the peace, riots and insurrections which
may come to the knowledge of the sheriff”).1
Maricopa County attempts to sidestep this authority by
arguing that Sheriff Arpaio’s acts cannot create respondeat
superior liability. But under section 1983, “[l]iability is
imposed, not on the grounds of respondeat superior, but
because the agent’s status cloaks him with the governmental
body’s authority.” Flanders, 54 P.3d at 847 (citing City of
Phoenix v. Yarnell, 909 P.2d 377, 384–85 (Ariz. 1995)).
Accordingly, the case law Maricopa County cites holding that
it is not liable for the Sheriff’s acts under respondeat superior
is inapposite here.
This is not to say, however, that Maricopa County’s
alleged lack of control over Sheriff Arpaio has no
significance. For instance, should the Sheriff fail to comply
with the district court’s injunction, and thereby make himself
and the County subject to contempt proceedings, the County
could rely on the degree to which it can control his behavior
to potentially avoid any adverse consequences.
At bottom, even if we agreed with Maricopa County that
our Melendres II opinion worked an injustice by substituting
it for MCSO (which we do not), we would still have no
authority to entertain this appeal since the Supreme Court has
1
While we observed in our Melendres II decision that “[o]n remand, the
district court may consider dismissal of Sheriff Arpaio in his official
capacity,” Melendres, 784 F.3d at 1260, at this juncture it appears that
such a dismissal may be unwarranted given the County’s suggestion that
it cannot exercise control over Sheriff Arpaio.
12 MELENDRES V. MARICOPA CTY.
made abundantly clear that federal courts cannot “create
equitable exceptions to jurisdictional requirements.” Bowles,
551 U.S. at 214.
III.
There is a “point of time when litigation shall be at an
end.” Browder, 434 U.S. at 264 (internal quotation marks
omitted). In this case, that point is prescribed by 28 U.S.C.
§ 2107(a) and Rule 4(a). Because Maricopa County’s notice
of appeal is untimely under both, we dismiss this appeal for
lack of jurisdiction. We have no authority to overlook those
provisions, regardless of whatever unfairness the County
believes not doing so engenders.
APPEAL DISMISSED.