Melendres v. Sands Reply to Response to Motion to Dismiss and Response to Motion for Vacatur

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 16-16659

MANUEL DE JESUS ORTEGA MELENDRES, et al.,

Plaintiffs-Appellees
and
UNITED STATES OF AMERICA,
Intervenor-Plaintiff-Appellee
v.
MARICOPA COUNTY; JOSEPH M. ARPAIO,
Defendants

BRIAN SANDS,

Movan -Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

UNITED STATES’ REPLY IN SUPPORT OF ITS MOTION TO DISMISS MO   ANT-APPELLANT BRIAN SANDS’ APPEAL AS 
MOOT AND UNITED STATES’ RESPONSE TO APPELLANT’S MOTION FOR VACATUR

On May 25, 2017, the United States filed a motion to dismiss Brian Sands’ appeal as moot because he 
lacks a cognizable interest in the appeal. On appeal, Sands requested that this Court vacate the 
district court’s finding that he violated the preliminary injunction and was in civil contempt. 
This finding was part of the district court’s May 2016 Findings of Fact, E.R. 138-299, which made 
extensive findings that form the basis of its Second Amended Second Supplemental Permanent 
Injunction/Judgement Order (“Second Permanent Injunction”), E.R. 4­-
70. Sands does not seek vacatur of that injunction, which has no effect on him as he retired from 
the Maricopa County Sheriff’s Office (MCSO) in 2013, or the Order re Victim Compensation, which 
held Sands not liable for the civil contempt damages.1  Defendant Maricopa County has separately 
appealed those orders.
Sands’ principal argument is not that his appeal is not moot. Rather, he contends that, if his 
appeal is found moot, he is subject to “collateral legal consequences” in the form of collateral 
estoppel based on a possible contribution or indemnity action by Maricopa County or MCSO, and that 
the possibility of such estoppel warrants vacatur of the contempt-related findings against him. 
Sands Resp. 10-13.  That contention lacks merit.

1 The Order re Victim Compensation ordered defendants to compensate victims injured by contemnors’ 
violations of the preliminary injunction and create a compensation fund of $500,000. See U.S. Mot. 
to Dismiss, Attachment 5, at 1-4. The district court rejected plaintiffs’ request to hold nonparty 
contemnors jointly and severally liable for the damages.  Id. at 3.

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The hypothetical risk of future harm from collateral estoppel arising from his now moot contempt 
finding does not constitute a collateral legal consequence.
Such a risk is too speculative to avoid mootness. Moreover, Sands does not seek vacatur of the 
Second Permanent Injunction, Order re Victim Compensation, or May 2016 Findings of Fact; he 
challenges only certain contempt-related findings for which no adverse legal consequences were 
imposed on him. Under these circumstances, vacatur is not appropriate if his appeal is dismissed as 
moot.
In effect, Sands is requesting that this Court line-edit the district court’s May 2016 Findings of 
Fact and February 2015 Order to Show Cause under what he claims is an “established practice” of 
vacating the judgment below when a civil suit becomes moot on appeal. But that practice does not 
apply here because Sands cannot appeal a civil contempt finding for which no sanctions or damages 
were imposed on him, and the judgment remains a live controversy as to another party in a separate 
appeal. Having benefitted from the order holding him not liable for contempt damages—a decision 
Sands does not challenge—he was not “frustrated” in seeking review of that decision “by the 
vagaries of circumstance,” or “deprive[d]” of “any review to which he was entitled.”  Camreta v. 
Greene, 563
U.S. 692, 712 & n.10 (2011) (internal quotation marks omitted). Accordingly, for the reasons 
explained below and in the United States’ motion to dismiss, Sands’ appeal should be dismissed as 
moot and his motion for vacatur should be denied.

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1. There Are No Collateral Legal Consequences That Save Sands’ Appeal From Mootness

Sands identifies no reason that this Court should not dismiss his appeal as moot. Although Sands 
argues that he is subject to “collateral legal consequences” because Maricopa County or MCSO may 
pursue a contribution or indemnity action against him and rely on his contempt finding, he does not 
contend that this risk of collateral estoppel saves his appeal from mootness. Nor could he. Indeed, 
he acknowledges that this Court has held that “the specter” of legal harm from collateral estoppel 
does not “qualify for the collateral consequences exception to the mootness doctrine.” Sands Resp. 
8 (quoting In re Burrell, 415 F.3d 994, 999 (9th Cir. 2005); see also Koppers Indus., Inc. v. 
United States Envtl. Prot. Agency, 902 F.2d 756, 758 (9th Cir. 1990) (finding that the “speculative 
contingency” of future collateral legal disputes cannot avert mootness).
Even after recognizing that the risk of collateral estoppel does not constitute a “collateral legal 
consequence” under the mootness doctrine, Sands asserts, without any legal basis, that vacatur of 
his contempt finding is justified because the risk of estoppel “subject[s him] to collateral legal 
consequences if the district court’s Findings of Fact are not subject to review.”  Sands Resp. 11, 
13.  But Sands’ use of the term “collateral legal consequences” to justify vacatur ignores the fact 
that this is a term of art in the mootness context with specific significance, which does not 
include the risk of estoppel alleged here.  See also U.S. Mot. to

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Dismiss 14-15 (arguing that the types of collateral legal consequences courts have found adequate 
to avoid mootness involved “substantial civil penalties”).
In any event, the possibility that Sands’ contempt finding may be used against him in a future 
indemnity action is too speculative to subject Sands to “collateral legal consequences” if this 
Court does not review that finding. See Camreta, 563 U.S. at 712 (“[O]ne can never be certain that 
findings made in * * * one lawsuit will not some day . . . control the outcome of another suit. But 
if that were enough to avoid mootness, no case would ever be moot.”) (quoting Commodity Futures 
Trading Comm’n v. Board of Trade of Chicago, 701 F.2d 653, 656 (7th 1983)). That this risk is 
speculative is highlighted by the fact that, in declining to hold Sands liable for contempt 
damages, the district court recognized that nonparty contemnors like Sands would be unable to 
“shoulder the expense involved even of notice, let alone payment, of the compensation amounts.” See
U.S. Mot. to Dismiss, Attachment 5 (Order re Victim Compensation), at 3.

Because Sands is not subject to “collateral legal consequences” by a hypothetical risk of 
collateral estoppel, and for the reasons set forth in the United States’ motion to dismiss, this 
Court should dismiss his appeal as moot.

2.     Vacatur Is Not Warranted Here, Where Sands Was Not Entitled To Review Of His Contempt 
Finding And The Case Is Moot As To Him But Not Others

Sands incorrectly relies on United States v. Munsingwear, Inc., 340 U.S. 36 (1950), to contend that 
the contempt-related findings against him in the May 2016

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Findings of Fact and the February 2015 Order to Show Cause should be vacated under the “established 
practice” that when a civil suit becomes moot pending appeal, the judgment is vacated. Sands Resp. 
6. That practice applies when mootness has “deprived the [appellant] of the review to which it is 
entitled.” Log Cabin Republicans v. United States, 658 F.3d 1162, 1168 (9th Cir. 2011) (emphasis 
added). The underlying rationale is that when civil litigants have a statutory right to appeal, the 
lower court’s decision is “only preliminary.” Munsingwear, 340 U.S. at 40. And if litigants are 
“frustrated by the vagaries of circumstance” in “obtaining the review to which they are entitled,” 
the preliminary decision below may be vacated to avoid unfair preclusive effect.  Camreta, 563
U.S. at 712 (internal quotation marks omitted); see also id. at 712 n.10 (“Munsingwear justified 
vacatur to protect a litigant who had the right to appeal but lost that opportunity due to 
happenstance.”).  A litigant seeking vacatur bears the burden of showing “equitable entitlement to 
the extraordinary remedy of vacatur.”  U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 
26 (1994).
a. The “established practice,” stemming from Munsingwear, of vacating a judgment in certain appeals 
that are moot is not applicable here. In contrast to Munsingwear, Sands is not entitled to review 
of his contempt findings because the district court declined to impose any sanctions on him and he 
has no right to challenge specific factual findings in the abstract without challenging the 
remedial

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order that held him not liable for the compensation awarded to victims. Moreover, although this 
appeal is moot as to Sands, the dispute regarding the injunction, from which Sands purportedly 
appeals, is not moot as to defendant Maricopa County, which has separately appealed. In these 
circumstances, Sands’ appeal of his contempt finding falls outside of Munsingwear and vacatur is 
not justified. See Camreta, 563 U.S. at 712 n.10 (“We have therefore left lower court decisions 
intact when mootness did not deprive the appealing party of any review to which he was entitled.”); 
cf. In re Grand Jury Proceedings, 863 F.2d 667, 669-670 (9th Cir. 1988) (vacating contempt order as 
moot where appellant had statutory right to expedited appeal under the “recalcitrant witness” 
statute).
As the United States argued in its motion to dismiss (at 13)—a point Sands does not address—Sands 
is not entitled to appellate review because a finding of civil contempt is not punitive and “is not 
appealable until sanctions have been imposed.” S.E.C. v. Hickey, 322 F.3d 1123, 1127 (9th Cir.) 
(internal quotation marks and citation omitted). Because Sands was not held liable for any 
sanctions or damages, dismissal of his appeal would not “deprive” him of any right to which he was 
entitled.
Further, Sands does not have the right to pursue appellate review of his contempt finding in the 
abstract, without challenging the Second Permanent Injunction or the Order re Victim Compensation, 
which declined to hold him liable

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for the damages resulting from his contumacious conduct. An appellate court “reviews judgments, not 
statements in opinions.” California v. Rooney, 483 U.S. 307, 311 (1987) (quoting Black v. Cutter 
Labs., 351 U.S. 292, 297 (1956)). And litigants who do not challenge the relief granted cannot 
“seek appellate excision of the district court’s ruling,” as they lack “standing to challenge the 
district court’s legal rulings in the abstract.”  Natural Res. Def. Council v. Gutierrez, 457 F.3d 
904, 906 (9th Cir. 2006). In other words, litigants who seek to keep the benefit of the relief 
granted or are unaffected by it, cannot obtain appellate review to “[e]ssentially  *  *  *  
line-edit the district court’s ruling.” Ibid.
Here, Sands does not challenge the Order re Victim Compensation, which was decided in his favor, or 
the Second Permanent Injunction, which does not affect him. While he purports to appeal from the 
injunction, the actual review he seeks from this Court is of the contempt-related findings in the 
May 2016 Findings of Fact and the February 2015 Order to Show Cause that only apply to him. See 
Sands Opening Brief 7, 46; Sands Resp. 18. Having chosen not to appeal the favorable Order re 
Victim Compensation, he cannot cherry pick for review only the unfavorable factual findings against 
him.  See Elec. Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 242 (1939) (“A party may not 
appeal from a judgment or decree in his favor, for the purpose of obtaining a review of findings he 
deems erroneous which are not necessary to support the decree.”); Aug. Tech. Corp. v.

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Camtek, Ltd., 542 Fed. Appx. 985, 994-995 (Fed. Cir. 2013) (concluding that defendant lacked 
standing to challenge a finding that it was a “willful infringer” because it ultimately prevailed 
in avoiding liability for enhanced damages).
b. Further, vacatur of the underlying contempt findings would be inappropriate here because the 
judgment is not moot as to another party (the County), which has separately challenged the 
judgment. When a case or controversy is still live as to another party who is entitled to review of 
the judgment, that judgment should not be affected by another litigant whose claims are moot and is 
not entitled to appellate review. In Karcher v. May, 484 U.S. 72 (1987), the Supreme Court 
dismissed an appeal because the appellants—two state legislators who had appealed a judgment 
invalidating a state statute—had lost their positions and were no longer entitled to appeal. Id. at 
77-78. The Court rejected appellants’ argument that the judgment should be vacated because the case 
was moot as to them. Id. at 82-83.  The Court explained that vacatur under Munsingwear was not 
appropriate because the reason the case became unreviewable was not appellants’ changed 
circumstances, but the decision by their successors in office who actually had the right to appeal 
and exercised that right by declining to seek review. Ibid. In other words, here, as in Karcher, 
“there is no reason to vacate when an appeal is mooted by the only appellant[’s] loss of

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standing but the dispute is not mooted as to the other parties.”2 13C Charles Alan Wright et al., 
Federal Practice and Procedure § 3533.10 (3d ed. 2017).
c. Sands relies on this Court’s decision in In re Burrell, 415 F.3d 994 (9th Cir. 2005), for the 
proposition that “[a]ny dismissal of his appeal as being moot will be based on the happenstance of 
the district court not holding [him] liable” for compensating victims and, therefore, he should not 
be penalized by having his claim of vacatur denied. Sands Resp. 16. But Sands’ reliance on In re 
Burrell is misplaced.  First, in Burrell vacatur was appropriate because the creditor’s statutory 
right to appellate review of his claims under a bankruptcy statute was “frustrated” by appellee’s 
conduct that rendered the appeal moot. 415 F.3d at 1000 (internal quotation marks omitted). By 
contrast, as explained above, Sands has no right to appeal his contempt finding in the abstract, 
and therefore, dismissal of his appeal as moot will not deprive him of any review to which he is 
entitled.
Second, even if Munsingwear were applicable, which, as explained above, it is not, the district 
court’s decision to hold him not liable for damages from his contempt is not the type of 
“happenstance” or “frustrat[ion] by the vagaries of
2 Where, as here, the doctrines of standing and mootness are closely related, the case may be 
analyzed under either doctrine. See U.S. Mot. To Dismiss 9 n.3; see, e.g., Princeton Univ. v. 
Schmid, 455 U.S. 100, 103 (1982) (dismissing appeal after finding the issue presented moot and then 
concluding that the appellant lacked standing); Lewis v. Knutson, 699 F.2d 230, 237 n.9 (5th Cir. 
1983) (analyzing case as a loss of standing but recognizing that the case could be analyzed under 
the mootness doctrine). Whether framed as mootness or a lack of standing, this appeal should be 
dismissed for lack of jurisdiction.

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circumstance” that courts have recognized warrant vacatur. Camreta, 563 U.S. at 712, 713 (internal 
quotation marks omitted). Far from “happenstance” for which Sands has no responsibility, the 
district court’s decision was made in his favor.3 Indeed, in the Parties’ Joint Notice of 
Stipulated Judgment For The Victim Compensation Plan, Sands preserved his right to appeal any 
liability to compensate the contempt victims. See U.S. Mot. to Dismiss, Attachment 4, at 3. A 
favorable decision is not the type of “happenstance” that courts have found to justify vacatur when 
an appeal is deemed moot. See, e.g., Camreta, 563 U.S. at 713 (vacatur warranted where 
“happenstance” of the minor moving out of state and becoming an adult “deprived” child protective 
services worker “of his appeal rights”); In re Burrell, 415 F.3d at 999-1000 (vacatur justified 
where appeal was mooted by the “happenstance” of appellee’s conduct). Having benefitted from a 
decision in his favor, Sands cannot show that he is equitably entitled to preserve that decision 
while obtaining vacatur of the underlying contempt finding against him.
Accordingly, this Court should dismiss Sands’ appeal as moot and deny his motion to vacate the 
contempt-related findings applicable to him in the May 2016 Findings of Fact and the February 2015 
Order to Show Cause.

3 Ignoring this fact, Sands instead argues against a straw man, asserting incorrectly that the 
United States “will argue that Sands voluntarily rendered his appeal moot by retiring from MCSO.” 
Sands Resp. 14. The United States argued that there was no live case or controversy in this appeal 
because Sands was not held liable for any sanctions or damages.  See U.S. Mot. to Dismiss 12-13.

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Respectfully submitted,

T.E. WHEELER, II
Acting Assistant Attorney General

s/ Christine H. Ku THOMAS E. CHANDLER CHRISTINE H. KU
Attorneys Department of Justice Civil Rights Division Appellate Section Ben Franklin Station
P.O. Box 14403
Washington, D.C. 20044-4403
(202) 353-9044

CERTIFICATE OF SERVICE
I hereby certify that on June 15, 2017, I electronically filed the UNITED STATES’ REPLY IN SUPPORT 
OF ITS MOTION TO DISMISS MOVANT­ APPELLANT BRIAN SANDS’ APPEAL AS MOOT AND UNITED STATES’ RESPONSE 
TO APPELLANT’S MOTION FOR VACATUR with the United
States Court of Appeals for the Ninth Circuit by using the CM/ECF system.

I certify that all participants in this case are registered CM/ECF users, and service will be 
accomplished by the appellate CM/ECF system.
s/ Christine H. Ku CHRISTINE H. KU
Attorney