United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 16, 2005
Charles R. Fulbruge III
Clerk
No. 04-10506
JILL MUNCY, et al.,
Plaintiffs,
versus
CITY OF DALLAS, TEXAS, et al.,
Defendants.
____________________________
ROBERT JACKSON, et al.,
Plaintiffs-Appellants,
versus
CITY OF DALLAS, TEXAS, et al.,
Defendants-Appellees,
Appeal from the United States District Court
for the Northern District of Texas
Civil Case No. 3:99-CV-2960-P;
Civil Case No. 3:00-CV-588-H
Before GARWOOD, JONES and STEWART, Circuit Judges.
PER CURIAM:*
Robert Jackson (“Jackson”) and Willie Taylor (“Taylor”)
appeal from a post-judgment order by the district court entered
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
March 26, 2004, instructing that certain checks held in its
registry be returned to the City of Dallas (“City”) instead of
disbursed to Jackson and Taylor. Jackson and Taylor argue that the
checks belonged to them because the City had voluntarily and
unconditionally paid Jackson and Taylor back pay from the date they
were removed from their chief-level positions (October 30, 1999) to
the date they were instructed to report to the City’s Police
Department for duty (August 15, 2001). Thus, they maintain that
the checks were a gift to them from the City and that they never
relinquished their claim of ownership to the checks by depositing
them in the registry. They also argue that this court has
jurisdiction to review a post-judgment order distributing funds
held in the district court’s registry.
I.
Factual Background
When Terrell Bolton was named Chief of Police of Dallas
in October, 1999, he immediately demoted several career officers
and replaced them. Among the demoted officers were Jackson, a
twenty-seven year police veteran, and Taylor, an officer with
twenty-eight years of service. Jackson retired from the Dallas
Police Department (“DPD”) rather than continue employment at the
reduced rank, and Taylor stayed on until March 27, 2001. Jackson
and Taylor sued the City in March 2000 asserting substantive and
2
procedural due process violations as well as state law claims for
breach of contract and wrongful termination.1
On June 21, 2001, the City notified Jackson and Taylor by
letter that it was reinstating them to their former chief-level
positions. On August 7 and August 13, 2001, the City sent letters
to Jackson and Taylor, respectively, requesting them to accept
their reinstatement by reporting for duty on August 15, 2001.
These letters also mention the back pay checks at issue here:
If you do not report for duty on August 15, 2001, you
will be deemed to have rejected your reinstatement, as
well as all accompanying salary and benefits from
August 15, forward, and to have affirmed your decision to
remain on your retirement status from the City of Dallas.
A check for your back pay will be sent to you shortly.
Neither man reported for duty to the Dallas Police
Department on August 15, 2001.
As the City was preparing to send checks to the
plaintiffs for back pay, Jackson’s and Taylor’s attorneys were
considering how to manage this transaction. They were ostensibly
concerned that acceptance of the checks at that time might imply
that they had released the City from liability. Jackson’s and
Taylor’s attorneys initially requested the City to pay the sums
directly into the district court registry, but when the City
responded that Texas law required wages to be sent to employees,
Jackson’s and Taylor’s attorneys responded that the City officials
1
More factual details about this litigation can be found in this
court’s opinion Muncy v. City of Dallas, Tex., 335 F.3d 394 (5th Cir. 2003).
3
should “do whatever it is they think is necessary for the
disposition of the funds.”
On September 7, 2001 (three weeks after the date the
plaintiffs were requested to appear for work), the City sent checks
for back pay directly to Jackson and Taylor.2 On October 10, 2001,
the district court granted Jackson’s and Taylor’s Unopposed Motion
Regarding Back Pay, ordering that the checks tendered to Jackson
and Taylor by the City be held in the district court registry. The
Order reads, in relevant part:
ORDERED that Plaintiffs tender the checks
representing the back wages presented to them by
Defendants to the District Clerk, so that such checks are
held securely in the vault used to hold non-cash
collateral . . . ; and it is, further,
ORDERED that such checks be returned to Plaintiffs
at the culmination of this litigation; and it is,
further,
ORDERED that the City of Dallas, a Defendant herein,
honor such checks when they are returned to Plaintiffs,
or replace them, upon conclusion of this litigation.
Jackson’s and Taylor’s motion for this Order stated their
intent regarding this registry deposit:
In the event that Plaintiffs succeed on their claims
herein, these funds can certainly be used to partially
satisfy Defendants’ judgment obligations. In the
unlikely event that Plaintiffs are not successful herein,
Plaintiffs will still be entitled to the funds Defendants
have voluntarily paid to them because of the claimed
“reinstatements.” After all, Defendants will hardly be
2
According to the City, the checks for Jackson (totaling $145,389.38)
and for Taylor (totaling $51,297.50) covered salary from October 31, 1999 (when
the men were fired by Chief Bolton), through August 14, 2001 (the day before they
were requested to report for duty).
4
able to claim, if they are ultimately successful, that
they “didn’t really reinstate Plaintiffs” and “didn’t
really make them whole.” Thus, in either scenario, the
funds should at some point belong to Plaintiffs.
On November 19, 2001, the district court granted summary
judgment for the City on all federal and state law claims, finding
that Jackson and Taylor lacked a property interest in their
executive positions with the DPD and thus the City was not liable
for wrongful discharge. See Muncy v. City of Dallas, Nos.
3:99-CV-2960-P, 3:00-CV-588-H, 2001 WL 1480770, at *1 (N.D. Tex.
Nov. 19, 2001). Jackson and Taylor appealed, and in June 2003,
this court affirmed the judgment of the district court. See Muncy
v. City of Dallas, Tex., 335 F.3d 394 (5th Cir. 2003). The City
did not cross-appeal the Order requiring it to return the funds at
the conclusion of the litigation. Both opinions focused on whether
the positions constituted “property” within the meaning of the
Fourteenth Amendment, and neither opinion analyzed the legal or
factual issues pertaining to the back pay checks.3
Following this court’s affirmance of summary judgment,
the City, on August 7, 2003, filed a Motion to Determine Status of
Checks. This appears to be the first time that the City claimed
that the checks ought to be returned. The district court entered
3
Regarding the checks, the district court Memorandum Opinion and Order
stated in its facts section: “Both Taylor and Jackson have refused to accept
their reinstatements, rejecting the checks offered by the City, and refusing to
return to employment with the City.” Muncy, 2001 WL 1480770, at *1. This court
said basically the same thing: “They have not returned to their jobs, nor have
they accepted checks tendered by the City for back pay and pension
contributions.” Muncy, 335 F.3d at 397.
5
the March 26, 2004, Order, instructing that the funds be returned
to the City instead of disbursed to Jackson and Taylor. Reaching
this conclusion, the district court principally relied on the
following observation:
[T]he record is clear that the Plaintiffs separately
chose not to accept the checks tendered to them as well.
Concerned that acceptance of the checks would somehow
lessen any damages they might recover against the City,
the Plaintiffs chose not to accept the checks and,
instead, chose to pursue this litigation. . . . Now
that they have ultimately been unsuccessful in their
litigation, Plaintiffs cannot reverse course and claim
entitlement to the same checks which they had previously
rejected.
Jackson and Taylor appeal this post-judgment order.
II.
A. Appellate Jurisdiction
The City argues that the post-judgment order is not a
reviewable “final order” because it was administrative only and
merely implemented the district court’s summary judgment order.
Stated differently, the post-judgment order does not resolve any
new factual or legal issues that were left unaddressed by the
district court’s summary judgment order that determined that the
City was not liable to Jackson and Taylor. According to the City,
the district court’s March 26, 2004, disbursement order is a
“reiteration” of the November 19, 2001, summary judgment order.
The City correctly states the law concerning appeals of
post-judgment orders but incorrectly applies it to the circum-
stances of this case. A mere ministerial order (such as an order
6
executing a judgment) is not a final appealable order. This
conclusion flows from the general principle that an appeal from a
post-judgment order should not function as a second appeal of the
judgment. Very often, an order to disburse funds from the court
registry will be “ministerial” in this sense that the order simply
executes the decision explicitly reached in the final judgment.
Where, on the other hand, a post-judgment order resolves
important questions that arise after a final judgment, appellate
review is available to test the trial court’s disposition. In re
Farmers’ Loan & Trust Co., 129 U.S. 206, 213, 9 S.Ct. 265, 266
(1889) (explaining that most trial court decisions resolving
important, but ancillary, matters that arise after the entry of
judgment are final decisions permitting appellate review); 15B
Charles A. Wright, Arthur R. Miller, Edward H. Cooper, Federal
Practice and Procedure § 3916 (2d ed. 1992) (“[O]nce the original
trial proceedings have been completed, final judgment appeal should
be available upon conclusion of most post-judgment proceedings.”).
Here, the March 26, 2004, disbursement order addressed a
question left unresolved by the final judgment issued more than
three years earlier. The district court’s November 2001 final
judgment involved the merits of the underlying federal and state
law claims but did not determine the ownership of the deposited
back pay checks. In context, the statement from the November 2001
final judgment that Jackson and Taylor “take nothing of their
claims against defendants” referred to the federal and state law
7
claims asserted in the complaint and did not resolve the important
question of which party owned the deposited checks. Thus, the
post-judgment order transferring the checks to the City concluded
a discrete proceeding and is appealable.
B. Entitlement to the Checks
Pursuant to Rule 67 of the Federal Rules of Civil
Procedure, a party may deposit a sum of money with the court
whether or not that party claims an interest in the fund or thing
deposited. FED. R. CIV. P. 67. The purpose of Rule 67 is “to
relieve the depositor of responsibility for a fund in dispute.” 12
Wright, Miller & Cooper, supra, § 2991. Once funds are deposited,
the court should determine ownership and make disbursements. Gulf
States Utils. Co. v. Alabama Power Co., 824 F.2d 1465, 1474 (5th
Cir. 1987). A post-judgment order disbursing funds held in the
registry of the district court is reviewed under the abuse of
discretion standard.
Jackson and Taylor argue that the district court
incorrectly concluded that their deposit of the checks into the
registry constituted a rejection of them. We agree with the
plaintiffs that their conduct with respect to the checks cannot
properly be construed as a rejection. Rather than rejecting the
funds, Jackson and Taylor took pains to have them safely kept in
the district court’s registry until resolution of the underlying
dispute. Jackson and Taylor accepted the checks by depositing them
8
in the registry with the request that they be returned at the
conclusion of litigation.
In their unopposed motion depositing the checks in the
registry, Johnson and Taylor stated that they regarded the checks
as a voluntary and unconditional transfer to them. They also
expressed their understanding that acceptance of the checks was a
separate issue from acceptance of the reinstatement of employment
from August 15, 2001, forward.4 They further declared their
expectation to receive the checks back from the district court at
the conclusion of litigation, stating that “in either scenario
[success or failure of the underlying causes of action], the funds
should at some point belong to Plaintiffs.” The district court’s
order, quoted above, adopts plaintiffs’ position explicitly. Yet,
the City never appealed this Order.
The City fails in arguing that this court’s prior opinion
establishes the “law of the case” foreclosing recovery for Jackson
4
Jackson and Taylor have sent mixed signals on this point at
subsequent stages of litigation. In later proceedings, Jackson and Taylor
indicated that they considered the checks and the City’s reinstatement of them
to be tied together and that acceptance of one was conditioned on acceptance of
the other. In fact, in one pleading before the district court, Jackson and
Taylor made the statement:
[T]he City of Dallas attempted to unilaterally “reinstate” Jackson
and Taylor to their former positions during the pendency of this
litigation and in connection therewith, paid them monies
representing “back wages.” Plaintiffs did not accept payment of
these “back wages . . . .”
It is significant, however, that this was not the understanding of matters
expressed in Jackson and Taylor’s original motion depositing the checks.
Plaintiffs’ motion and the district court order both contemplated that the checks
would be returned to Jackson and Taylor at the termination of the litigation,
regardless of the decision on the merits of the wrongful discharge claims.
9
and Taylor. Although the opinions of both the district court and
this court stated that Jackson and Taylor had “rejected” or “not
accepted” the checks, those factual observations were not pertinent
to the issue resolved in those proceedings — whether Jackson and
Taylor held a property right in their jobs that would entitle them
to due process. See White v. Murtha, 377 F.2d 428, 431 (5th Cir.
1967) (stating that the law-of-the-case doctrine applies to
questions previously litigated and decided); 18B Wright, Miller &
Cooper, supra, § 4478 (describing how the discretionary law-of-the-
case doctrine does not reach a matter stated in dicta that was not
presented for decision and was not decided). In fact, by failing
to cross-appeal this issue in its first trip to this court, the
City (inadvertently) allowed the district court’s Order concerning
the registry to become a final judgment.
III.
Having ordered at the time of deposit that Jackson and
Taylor would be returned the checks at the conclusion of
litigation, the district court abused its discretion by disbursing
the funds to the City. For the foregoing reasons, we REVERSE the
March 26, 2004, Order and instruct the district court to disburse
the funds to Jackson and Taylor.
10