Whitfield v. Municipality of Fajardo

United States Court of Appeals
For the First Circuit

No. 08-1004

JUSTIN LEE WHITFIELD ET AL.,

Plaintiffs, Appellees,

v.

MUNICIPALITY OF FAJARDO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Selya, Circuit Judges.

Stephen S. Young, with whom Benjamin M. McGovern, Holland &
Knight LLP, Etienne Totti Del Toro, and Totti & Rodríguez Díaz were
on brief, for appellant.
John F. Nevares, with whom John F. Nevares & Associates,
P.S.C. was on brief, for appellees.

April 23, 2009
 SELYA, Circuit Judge. This appeal compels us to wend our

way through a tangled record, and leads us to an unexpected

destination. Because the history of the case informs our decision,

we start there.

The litigation that underlies this appeal had its genesis

in an unspeakably tragic incident that occurred in Fajardo, Puerto

Rico, on December 9, 2000. The grisly details are chronicled in an

earlier opinion, see Whitfield v. Meléndez-Rivera (Whitfield I),

431 F.3d 1, 3-5 (1st Cir. 2005), and no useful purpose would be

served by rehearsing them now. For present purposes, it suffices

to say that a young man, Justin Lee Whitfield, was shot and

seriously wounded, without sufficient justification, by two Fajardo

police officers acting in the course of their employment and under

color of law.

In due course, Whitfield sued in the federal district

court, under 42 U.S.C. § 1983, for compensatory and punitive

damages. His father and mother joined the suit as plaintiffs; they

asserted derivative claims under local law. See P.R. Laws Ann.

tit. 31, § 5141. The suit named as defendants the two police

officers, the police commissioner, the Municipality of Fajardo (the

Municipality), and the mayor of Fajardo. The plaintiffs premised

the liability of the non-constabulary parties upon alleged failures

(i) to adopt appropriate regulations anent police officers' use of

force and (ii) to train officers properly in the use of force.

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 Following a three-day trial, a jury found all the

defendants liable and awarded Whitfield $4,000,000 in compensatory

damages against the defendants, jointly and severally. The jury

simultaneously awarded each of his parents $500,000 in compensatory

damages. Finally, the jury awarded punitive damages in favor of

Whitfield as follows: $15,000 against each of the police officers;

$18,000 against the police commissioner; and $50,000 against the

mayor. Each punitive award ran against the specified defendant in

his individual capacity.

On appeal, a panel of this court upheld the liability

finding against the two police officers, Whitfield I, 431 F.3d at

19, but deemed the compensatory damage awards excessive, id. at 16-

18. To remedy this defect, the panel vacated the awards and

remanded with instructions to convene a new trial on the issue of

compensatory damages unless Whitfield agreed to remit all

compensatory damages in excess of $3,000,000 and his parents agreed

to remit all compensatory damages in excess of $100,000 apiece.

Id. at 19.

The other defendants fared better. The panel determined

that liability had not been established against any of them. Id.

at 13-14. Consequently, the panel vacated the verdicts against the

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police commissioner, the Municipality, and the mayor in their

entirety.1 Mandate issued on January 30, 2006.

On remand, the plaintiffs agreed to the remittiturs

proposed in Whitfield I. The district court entered amended

judgments in those amounts against the two police officers. See

Whitfield v. Municipality of Fajardo, Civ. No. 01-2647, slip op. at

1-2 (D.P.R. Mar. 29, 2006) (unpublished).

At this juncture, an idiosyncratic Puerto Rico indemnity

law, P.R. Laws Ann. tit. 32, §§ 3085-3092, came front and center.

This statute, familiarly known as Law 9, provides generally (albeit

subject to various limitations) that a public official or employee

(current or former), of either the Commonwealth of Puerto Rico or

a municipality, may request the Commonwealth to "assume the payment

of any judgment that may be entered against his person." Id. §

3085. Upon the receipt of such a request, the Commonwealth's

Secretary of Justice (the Secretary) "shall determine whether it is

in order to pay the full judgment imposed on the public

official[]." Id. § 3087; see Ortiz-Feliciano v. Toledo-Dávila, 175

F.3d 37, 40 (1st Cir. 1999). If the Secretary decides that payment

is in order, the public official's employer must pay the indemnity

"from [its] available funds." P.R. Laws Ann. tit. 32, § 3092. If

1
The panel opinion speaks at one point of "revers[ing]" the
verdicts, Whitfield I, 431 F.3d at 19, but the mandate references
the "vacat[ion]" of the verdicts. Given our disposition of this
appeal, see text infra, we need not probe the significance (if any)
of this discrepancy.

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those funds are insufficient, the balance is paid by the

Commonwealth. Id.

Local police officers are public employees within the

ambit of Law 9. See id. §§ 3085, 3092 (identifying "members and

former members of the Municipal Police Corps" as covered persons).

With that in mind, the defendant police officers requested

indemnity.

On February 23, 2007, the Secretary issued a resolution

(the Resolution) directing that payment of the amended judgments be

effected out of the Municipality's available funds. See id. §

3087. The balance, if any, would be payable by the Commonwealth.

Id. § 3092.

This arrangement suited the plaintiffs, who wished to

collect the amended judgments and saw the public coffers as a

salubrious source of satisfaction. Since the Municipality had been

a party to the action from its inception, the plaintiffs asked the

district court to implement the Resolution and enforce the amended

judgments against the Municipality qua indemnitor. The

Municipality strenuously objected.

In entertaining the plaintiffs' motion, the court

apparently invoked its ancillary enforcement jurisdiction. That

jurisdiction is implemented through Rule 69(a) of the Federal Rules

of Civil Procedure, which provides in pertinent part that the

procedure on execution "must accord with the procedure of the state

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where the court is located." Under this rule, state law governs

not only the parties' substantive rights but also the procedure to

be followed.2 See Gabovitch v. Lundy, 584 F.2d 559, 561 (1st Cir.

1978). The relevant state law is that of the state in which the

federal district court sits. See 12 Wright, Miller & Marcus,

Federal Practice & Procedure § 3012 (2d ed. 1997).

The district court initially indicated a willingness to

oblige the plaintiffs. It ordered the Municipality, pursuant to

the Resolution, to hold the officers harmless by paying the

plaintiffs from available funds to the extent practicable. See

Whitfield v. Municipality of Fajardo, Civ. No. 01-2647, slip op. at

7 (D.P.R. May 29, 2007) (unpublished). The court theorized that

this procedure would be consistent with Law 9 and that the

Commonwealth would pay the balance. See id. at 4-6 (citing P.R.

Laws Ann. tit. 32, § 3092). Yet that order was patently non-final.

For example, the court stopped short of either quantifying a fixed

amount to be paid by the Municipality or establishing a deadline

for payment. In an effort to thwart the plaintiffs' collection

efforts, the Municipality instituted an action in the Puerto Rico

Court of First Instance. Its complaint, filed a few days before

2
Puerto Rico is deemed the functional equivalent of a state
for the purposes of Rule 69(a). Cf. Goya Foods, Inc. v. Wallack
Mgmt. Co., 290 F.3d 63, 70 (1st Cir. 2002) (holding to that effect
with respect to Rule 64).

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the May 29 order issued, sought to nullify the Resolution. The

Secretary resisted this initiative.

In the days that followed the May 29 order, the

Municipality pressed ahead in the district court and, among other

things, asked the court to abstain from definitively resolving the

indemnification question. The Whitfields were not parties to the

Municipality's suit in the Court of First Instance. Nevertheless,

they beseeched the district court to ignore that suit on the ground

that the Municipality lacked standing to challenge the Resolution.3

On June 7, 2007, the Court of First Instance granted a

preliminary injunction barring enforcement of the Resolution. That

very day, the Municipality asked the district court to stay its

Rule 69(a) proceedings pending a full adjudication of the validity

of the Resolution in the Puerto Rico courts. The district court

refused to grant a stay. See Whitfield v. Municipality of Fajardo,

Civ. No. 01-2647, slip op. at 4 (D.P.R. June 25, 2007)

(unpublished). Again, however, the court stopped short of

enforcing the amended judgments.

The denouement occurred on November 8, 2007. On that

date the district court, despite its original inclination, spurned

3
The plaintiffs base this objection on two decisions of the
Puerto Rico courts. See Ortiz-Feliciano v. Puerto Rico, 158 P.R.
Dec. 62 (2002); Municipio de Guaynabo v. Secretario de Justicia,
2000 WL 35527317, Civ. No. KLRA20060994 (P.R. Cir. Feb. 26, 2007).
We have not been furnished with a certified translation of either
decision. See 1st Cir. R. 30.0(d). Due to that omission, we need
not consider arguments based on those decisions.

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an enforcement order. Instead, it ordered the Municipality to

deposit the monies needed to satisfy the amended judgments — a

total of $3,200,000 plus interest — in the registry of the district

court by a date certain. See Whitfield v. Municipality of Fajardo,

Civ. No. 01-2647, slip op. at 7 (D.P.R. Nov. 8, 2007)

(unpublished). The court decreed a rolling fine of $3,000 per day

for noncompliance with the deposit deadline. The Municipality

staved off any such fines by posting a supersedeas bond in a form

and amount approved by the district court.

During the currency of this appeal, the Court of First

Instance declared the Resolution void. Municipality of Fajardo v.

Sec'y of Justice, Civ. No. NSCI2007431, slip op. at 33 (P.R. Sup.

Ct. Dec. 8, 2008) (unpublished certified translation). On the date

of oral argument in this court (March 2, 2009), the appeal period

pertaining to that judgment was still open.

With this background in place, we turn to the task at

hand. The parties have served up a salmagundi of issues relating

to, among other things, the scope of the district court's ancillary

enforcement jurisdiction, the impact of the mandate in Whitfield I

on the Municipality's status as a party, the effect of principles

of abstention and comity, and the appropriateness of the manner in

which the district court has thus far exercised its discretion. We

cannot partake of that fare because we have come to conclude that

we lack jurisdiction over this interlocutory appeal.

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 To be sure, the parties have assumed the existence of

appellate jurisdiction. But litigants cannot confer subject-matter

jurisdiction, otherwise lacking, by "indolence, oversight,

acquiescence, or consent." United States v. Horn, 29 F.3d 754, 767

(1st Cir. 1994). Moreover, federal courts have an omnipresent duty

to take notice of jurisdictional defects, on their own initiative

if necessary. See Espinal-Domínguez v. Puerto Rico, 352 F.3d 490,

495 (1st Cir. 2003).

We suspect that the reason why the parties have overlooked

the jurisdictional pitfall is that they all have focused on the

district court's preliminary statements concerning its intention to

enforce both the Resolution and the amended judgments. Thus, they

have treated this appeal as one involving a final order of payment

from the Municipality to the plaintiffs. As such, they assume (as

evidenced by the jurisdictional statements in their respective

briefs) that this court has jurisdiction under 28 U.S.C. § 1291

(granting appellate jurisdiction over "final decisions" of district

courts).

That focus is misdirected. While the district court

obviously toyed with the possibility of an enforcement order, the

court evidently thought better of following that course while the

Commonwealth and the Municipality were dueling over the validity of

the Resolution in a parallel action. Thus, the court never entered

a full-fledged enforcement order but, rather, retreated from that

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notion. That the court at one point came close to ordering

enforcement is not enough to close this gap.4

To cinch matters, the notice of appeal in this case

specifies the November 8 order as the order from which an appeal is

being taken. That order is described above; it is a deposit order,

not an enforcement order directing payment from one party to

another. The November 8 order merely directs the Municipality to

pay funds into the registry of the court. See Whitfield v.

Municipality of Fajardo, Civ. No. 01-2647, slip op. at 7 (D.P.R.

Nov. 8, 2007) (unpublished). It does not end the controversy;

further orders plainly will be needed to close the case.

Given these historical facts, the presence or absence of

appellate jurisdiction necessarily depends on the appealability vel

non of a deposit order. We turn next to that inquiry.

The principal font of federal appellate jurisdiction is

28 U.S.C. § 1291, which permits appeals only from final orders. See

Alstom Caribe, Inc. v. Geo. P. Reinjes Co., 484 F.3d 106, 111 (1st

Cir. 2007). Such an order is one that "ends the litigation on the

merits and leaves nothing for the court to do but execute the

judgment." Catlin v. United States, 324 U.S. 229, 233 (1945).

Typically, a deposit order is not a final order. Rather, it is an

interim step in a proceeding to enforce a judgment; it does not end

4
The district court's May 25 order was never given teeth and
was ultimately supplanted by the later deposit order.

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the litigation, and plainly lacks the finality that is required to

engage the gears of 28 U.S.C. § 1291. See, e.g., JMS Dev. Co. v.

Bulk Petrol. Corp., 337 F.3d 822, 827 (7th Cir. 2003).

The fact that the deposit order in this case is a post-

judgment order must, of course, be considered. Even so, the deposit

order is inherently interlocutory.5 See Forgay v. Conrad, 47 U.S.

(6 How.) 201, 204 (1848) (explaining that "cases where money is

directed to be paid into court . . . are interlocutory only"). In

the usual case, such an order is not immediately appealable. See

15A Wright, Miller & Cooper, supra § 3910 ("It is clear . . . that

appeal ordinarily cannot be taken from an order that directs

delivery to a court officer."). This case is not unusual in terms

of either the lack of finality of the deposit order or the absence

of a basis for immediate appealability.

Of course, section 1291 is not the sole source of federal

appellate jurisdiction. There are a number of paths less traveled

that may lead to the immediate appealability of a non-final,

interlocutory order. But none of those avenues seems accessible

here. We briefly canvass the likely prospects.

Orders to deposit money with the court or to post security

do not constitute injunctions and, thus, are not immediately

appealable under 28 U.S.C. § 1292(a). See, e.g., HMG Prop.

5
This is not to say that some post-judgment orders may not be
independently appealable. See, e.g., Isidor Paiewonsky Assocs.,
Inc. v. Sharp Props., Inc., 998 F.2d 145, 150 (3d Cir. 1993).

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Investors, Inc. v. Parque Indus. Río Canas, Inc., 847 F.2d 908, 912

n.5 (1st Cir. 1988); Trs. of Hosp. Mortg. Group v. Compañía

Aseguradora Interamericana S.A. Panama, 672 F.2d 250, 251 (1st Cir.

1982). The statutory requirements for the certification of an

interlocutory appeal have not been fulfilled. See 28 U.S.C. §

1292(b). And, finally, deposit orders are not immediately

appealable as collateral orders under the doctrine of Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47 (1949); absent

a showing of extraordinary hardship, not present here, "no important

right of the defendant is endangered by delaying appellate

consideration until after the trial court renders a [final]

decision," Trs. of Hosp. Mortg. Group, 672 F.2d at 251.

The short of it is that an appeal here must await further

action of the district court (action that the court wisely has

indicated that it will not take until the validity of the Resolution

has been fully adjudicated in the Puerto Rico courts). Depending

upon the course of further proceedings in the two parallel actions,

the necessity for such an appeal may be avoided.

We need go no further. For the reasons elucidated above,

we dismiss this appeal without prejudice, for want of appellate

jurisdiction.

Dismissed.

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