Elaine Blanchard v. City of Memphis, Tenn. ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0169n.06
Case Nos. 20-6211/6263
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Apr 26, 2022
ELAINE BLANCHARD; KEEDRAN FRANKLIN; ) DEBORAH S. HUNT, Clerk
)
PAUL GARNER; BRADLEY WATKINS,
)
Plaintiffs - Appellants (20-6211), ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF TENNESSEE
CITY OF MEMPHIS, TENNESSEE, )
Defendant - Appellee (20-6211), ) OPINION
Defendant - Appellant (20-6263), )
)
ACLU OF TENNESSEE, )
)
Intervenor-Appellee (20-6263). )
Before: KETHLEDGE, STRANCH, and NALBANDIAN, Circuit Judges.
NALBANDIAN, Circuit Judge. The two appeals before us are more than three years late,
so they fail on arrival. The plaintiffs in this case (the Blanchard Plaintiffs) sued to hold the City of
Memphis in contempt of a decades-old Consent Decree. The district court dismissed their claims
for lack of standing, but the American Civil Liberties Union of Tennessee timely intervened. With
ACLU-TN as the Intervenor-Plaintiff, the case went to trial, and the district court held the City in
contempt. That was in October 2018, and that’s when the Blanchard Plaintiffs should have
appealed. But instead, they waited until 2020 and latched their appeal to a collateral decision
unrelated to their complaint. This prompted the City to file an appeal of its own against ACLU-
TN, using Fed. R. App. P. 4(a)(3) to ride the coattails of the Blanchard Plaintiffs’ appeal. Neither
appeal is timely, so we DISMISS both for lack of jurisdiction.
Case Nos. 20-6211/6263, Blanchard, et al. v. City of Memphis, et al.
I.
Back in 1976, the ACLU of West Tennessee, the Executive Director of ACLU-TN, and
the Southern Director of the National Committee Against Repressive Legislation sued the City of
Memphis and a handful of its officers. They claimed the Memphis Police Department was
engaging in unlawful surveillance, in violation of their constitutional rights. This litigation yielded
a 1978 Consent Decree. It prohibits “the City of Memphis from engaging in law enforcement
activities which interfere with any person’s rights protected by the First Amendment.” (R. 151,
Consent Decree, PageID 6281.) And to that end, it requires the City to “appropriately limit all law
enforcement activities.” (Id.) More specifically, it says the City “shall not engage in political
intelligence,” nor “operate or maintain any office, division, bureau or any other unit for the purpose
of engaging in political intelligence.” (Id. at PageID 6282.)
Fast forward several decades. In February 2017, the Blanchard Plaintiffs sued to enforce
the Consent Decree. Because the Blanchard Plaintiffs were never parties to the Consent Decree,
the district court dismissed their complaint for lack of standing. But ACLU-TN intervened in time,
and so the case stayed alive.
In June 2017, the Blanchard Plaintiffs filed a notice of appeal and subsequently moved for
Rule 54(b) certification. But the trial court denied certification. It explained that “ACLU-TN may
prevail in this action on the merits.” (R. 57, Nov. 1, 2017 Order, PageID 608.) And “[i]n that event,
ACLU-TN would likely obtain the substantive remedy the Blanchard Plaintiffs seek in their
Complaint: the enforcement of the [Consent] Decree.” (Id.)
With ACLU-TN now heading up the litigation, the case made it through a bench trial. On
October 26, 2018, the district court issued a decision: It concluded that ACLU-TN had standing to
enforce the Consent Decree and held the City in contempt. And in that same order, the district
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Case Nos. 20-6211/6263, Blanchard, et al. v. City of Memphis, et al.
court also assessed sanctions. It ordered the City to revise its regulations, introduce new training,
establish a process for approving investigations, introduce guidelines for social media, and track
search terms Memphis police officers use while collecting information on social media.
Afterwards, ACLU-TN and the City continued wrangling over the latter’s efforts to
modify the Consent Decree. These efforts originated with the City’s Rule 60(b) motion to vacate
or modify the Consent Decree filed five days before the bench trial. This led to a second, separate
trial on the modification issue only. And eventually, the district court wrapped up the modification
question in a September 21, 2020 order.
Then on October 20, 2020, the Blanchard Plaintiffs appealed the district court’s June 30,
2017 order dismissing them from the case. The City followed up with an appeal of its own, arguing
the district court erred in holding ACLU-TN had standing to enforce the Consent Decree. And so
ACLU-TN was pulled back into this litigation as an appellee. ACLU-TN says the City’s appeal is
untimely because the appealable judgment here is the October 26, 2018 decision, not the more
recent order that dealt with the modification issue only.
II.
Our first task in any appeal is to “assure ourselves that we have jurisdiction to review the
orders at issue.” Abbott v. Perez, 138 S. Ct. 2305, 2319 (2018). Parties may appeal “all final
decisions of the district courts of the United States.” 28 U.S.C. § 1291. But they must file that
appeal within 30 days after entry of final judgment. Fed. R. App. P. 4(a)(1)(A). And if the appeal
is untimely, “it must be dismissed for want of jurisdiction.” Bowles v. Russell, 551 U.S. 205, 213
(2007) (quoting United States v. Curry, 47 U.S. (1 How.) 106, 113 (1848)).
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Case Nos. 20-6211/6263, Blanchard, et al. v. City of Memphis, et al.
Generally, a decision is final when it “ends the litigation on the merits and leaves nothing
for the court to do but execute the judgment.” Gnesys, Inc. v. Greene, 437 F.3d 482, 485 (6th Cir.
2005) (quoting Budinich v. Becton Dickinson & Co., 486 U.S. 196, 199 (1988)). More specifically,
civil contempt orders are final once the district court assesses sanctions. See, e.g., id. at 487
(assessment of damages for contempt of consent permanent injunction “effectively render[ed] the
decision final”); Shuffler v. Heritage Bank, 720 F.2d 1141, 1145 (9th Cir. 1983) (“Once the finding
of contempt has been made and a sanction imposed, the order has acquired all the ‘elements of
operativeness and consequence necessary to be possessed by any judicial order to enable it to have
the status of a final decision under § 1291.’” (quoting SEC v. Naftalin, 460 F.2d 471, 475 (8th Cir.
1972))). With all of this in mind, we consider the two appeals in turn.
The Blanchard Plaintiffs’ appeal. The question boils down to this: What is the final
judgment here? Because it’s the October 26, 2018 order, not the September 21, 2020 tag-along,
we are long past the deadline for appeal.
Here, the point of the Blanchard Plaintiffs’ appeal is to establish standing so they can hold
the City in contempt of the Consent Decree. But that contempt question was litigated to its
conclusion back in 2018. The district court guided the case through a bench trial, and it held the
City in contempt on October 26, 2018. Indeed, just as the district court predicted when it denied
the Blanchard Plaintiffs’ Rule 54(b) certification motion, “ACLU-TN . . . prevail[ed] in this action
on the merits” and “obtaine[d] the substantive remedy the Blanchard Plaintiffs seek in their
Complaint: the enforcement of the [Consent] Decree.” (R. 57, Nov. 1, 2017 Order, PageID 608.)
In other words, the October 26, 2018 decision “disposed on the [Blanchard Plaintiffs’] entire
complaint.” Brown Shoe Co. v. United States, 370 U.S. 294, 308 (1962). And importantly, the
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Case Nos. 20-6211/6263, Blanchard, et al. v. City of Memphis, et al.
district court assessed sanctions in that same order as well. At that point, the clock began ticking
for the Blanchard Plaintiffs to file their appeal, consistent with the caselaw.
Certainly, ACLU-TN and the City continued negotiating and litigating over modifications
to the Consent Decree until 2020. But that’s a separate, collateral matter. In fact, the City said as
much in its response to the Blanchard Plaintiffs’ motion to intervene in the modification litigation.
(R. 177, Dec. 21, 2018, Resp., PageID (“[T]he modification proceeding is a proceeding collateral
to the ACLU-TN’s suit to ‘enforce’ the Consent Decree.”).) The 2018 order was about the City’s
past violations, while the modification question involved future changes to the Consent Decree. In
other words, any modification along the lines that the City requested would not have undone its
past contempt.1 And in any event, the Blanchard Plaintiffs were not party to this modification
litigation.2
What’s more, the City was free to pursue modification at any time from 1978 onwards,
well before the Blanchard Plaintiffs entered the scene. See, e.g., Williams v. Vukovich, 720 F.2d
909, 920 (6th Cir. 1983) (courts “retain jurisdiction over the decree during the term of its existence”
and can “modify the decree should changed circumstances subvert its intended purpose” (internal
quotation omitted)). The Blanchard Plaintiffs would have us adopt an unworkable rule: A contempt
order isn’t appealable so long as the possibility of modifying the consent decree persists.3
1
Specifically, the City claimed that “certain aspects of the Consent Order are impractical, impose
an unreasonable administrative burden, and are not suited to today’s world of social media activity
driving protest and counter-protest activity.” (R. 124, Aug. 15, 2018 Mot., PageID 5012.) ACLU-
TN and the City went on to engage in multiple rounds of mediation, which yielded sixteen jointly
proposed modifications. But they continued to disagree over the language of §§ H and I of the
Consent Decree, and the district court resolved these in its September 21, 2020 order.
2
On January 14, 2019, the district court denied the Blanchard Plaintiffs’ motion to intervene.
3
The City tries to rescue the Blanchard Plaintiffs’ appeal. As the City sees it, because there was
“no need to modify the Consent Decree . . . until the Blanchard Plaintiffs sought an order of
contempt,” “the Motion to Modify was inextricably intertwined with the Blanchard Plaintiffs’
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Case Nos. 20-6211/6263, Blanchard, et al. v. City of Memphis, et al.
We reject this and conclude that the appeal is time-barred. And so we cannot reach the merits of
the Blanchard Plaintiffs’ appeal.
The City’s appeal. The second appeal is time-barred just the same. That’s because its
timeliness rises and falls with the timeliness of the Blanchard Plaintiffs’ appeal. The City’s only
jurisdictional hook here is Fed. R. App. P. 4(a)(3), which provides that, “[i]f one party timely files
a notice of appeal, any other party may file a notice of appeal within 14 days after the date when
the first notice was filed.” But importantly, the City “concedes that if the Blanchard Plaintiffs
failed to timely file their Notice of Appeal, then the City’s separate appeal was likewise not timely
filed.” (City Reply at 9 (citation omitted).) Indeed, our “jurisdiction over [the City’s appeal]
derives from the [Blanchard Plaintiffs’] initial notice of appeal.” Stephanie-Cardona LLC v.
Smith’s Food & Drug Ctrs., Inc., 476 F.3d 701, 705 (9th Cir. 2007). And thus, “because [the
Blanchard Plaintiffs’] notice of appeal was itself untimely, there was no prior invocation of
jurisdiction that could sustain [the City’s appeal].” Id.III.
We DISMISS both appeals for lack of jurisdiction.
contempt litigation.” (City Reply at 10-11 (citation omitted).) But the City offers nothing by way
of caselaw to support this intertwinement theory. And it makes no effort to distinguish those cases
that confirm a contempt order is final at the point of sanctions. See supra at 4. Indeed, “[t]he time
of appealability, having jurisdictional consequences, should above all be clear.” Budinich, 486
U.S. at 202. An amorphous test that looks to whether a motion to modify was “inextricably
intertwined” with a contempt order is anything but.
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