Burgos-Yantin v. Municipality of Juana Diaz

United States Court of Appeals
For the First Circuit

No. 14-1359

CARMEN D. BURGOS-YANTÍN,

Plaintiff, Appellee,

v.

MUNICIPALITY OF JUANA DÍAZ, et al.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Silvia Carreño-Coll, U.S. Magistrate Judge]

Before

Howard, Chief Judge,
Torruella and Lipez, Circuit Judges.

Jorge Martínez-Luciano, with whom Emil Rodríguez-Escudero and
Martínez-Luciano & Rodríguez-Escudero Law Office were on brief,
for appellant.
José R. Olmo-Rodríguez for appellee.
Margarita L. Mercado Echegaray, Solicitor General, and Susana
I. Peñagarícano-Brown, Assistant Solicitor General, Department of
Justice, on brief for the Commonwealth of Puerto Rico, amicus
curiae.

November 19, 2018
 Per curiam. This appeal arises from the district

court's exercise of ancillary jurisdiction to enforce a

resolution, issued by the Puerto Rico Secretary of Justice,

directing the Municipality of Juana Díaz to indemnify two municipal

police officers found liable under Puerto Rico tort law after a

federal jury trial for using excessive force resulting in a death.

The Municipality argues that the district court's order stretched

federal ancillary enforcement jurisdiction beyond its proper

bounds.1 We disagree and therefore affirm.

I.

Appellee and other family members filed this action

after the shooting death of their relative, Miguel Ángel-Burgos,

at the hands of the police. They brought federal claims under 42

U.S.C. § 1983 and negligence claims under Puerto Rico's general

tort statute, P.R. Laws Ann. tit. 31, § 5141. The complaint

initially named the Municipality of Juana Díaz (the

"Municipality"), its mayor, and several municipal police officers

as defendants. In 2009, however, the district court granted

summary judgment on the issue of municipal liability and dismissed

the Municipality from the case. Almost a year later, the court

1 Consistent with our precedent, we use the terms "ancillary
enforcement jurisdiction" and "enforcement jurisdiction" to refer
to the inherent power of federal courts to exercise jurisdiction
by enforcing judgments "in certain situations where jurisdiction
would otherwise be lacking." Futura Dev. of P.R., Inc. v. Estado
Libre Asociado de Puerto Rico, 144 F.3d 7, 9 n.1 (1st Cir. 1998).

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held a jury trial for the remaining defendants. The jury rejected

plaintiffs' § 1983 claims, as well as most of their tort law

claims. It did, however, return a verdict for Carmen Burgos-

Yantín ("Burgos-Yantín"), the decedent's mother, with respect to

her negligence claims against two municipal police officers in

their personal capacities. The district court entered judgment

against the two officers for $25,000 and $5,000, respectively.

In December 2012, Burgos-Yantín filed a Motion for

Execution of Judgment 2 asserting that the Municipality was

"responsible for the payment of the Judgment" against its officers

by operation of a Puerto Rico statute commonly referred to as "Law

9." See P.R. Laws Ann. tit. 32, §§ 3085-3092. Law 9 permits

Commonwealth and municipal officials sued in their personal

capacities for alleged civil rights violations to ask the

Commonwealth to "assume the payment of any judgment" so long as

they acted "in good faith." Id. § 3085. With respect to municipal

officials, judgments must be "defrayed from available funds in the

corresponding . . . municipality." Id. § 3092. The Puerto Rico

Secretary of Justice (the "Secretary") is charged with determining

whether payment is due under Law 9. Id. § 3087. Here, the parties

agree that the Secretary issued a resolution in April 2011

2Pursuant to Federal Rule of Civil Procedure 69, "[a] money
judgment is enforced by a writ of execution, unless the court
directs otherwise." Fed. R. Civ. P. 69(a)(1).

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requiring the Municipality to pay the judgments against the

individual defendants.3

The Municipality opposed the Motion for Execution of

Judgment, arguing that the district court lacked jurisdiction to

enforce the Secretary's resolution. The district court rejected

this argument, holding that it had "ancillary enforcement

jurisdiction" and inviting Burgos-Yantín to move for a writ of

execution against the Municipality. Burgos-Yantin v. Municipality

of Juana Diaz, No. 07-1146(JA), 2013 WL 435203, at *2-4 (D.P.R.

Jan. 2, 2013). Burgos-Yantín subsequently filed a motion

requesting "the garnishment, attach[ment], or restraining of the

Municipality of Juana Diaz's assets and properties." The district

court granted that motion. Burgos-Yantin v. Municipality of Juana

Díaz, No. 07-1146(SCC), 2014 WL 1096016, at *3 (D.P.R. Mar. 19,

2014). The Municipality now appeals the district court's ruling.

II.

This case turns on the district court's jurisdiction (or

lack thereof) to enforce the Secretary's Law 9 resolution against

the Municipality. A district court may exercise ancillary

jurisdiction for two reasons: "(1) to permit disposition by a

single court of claims that are, in varying respects and degrees,

factually interdependent; and (2) to enable a court to function

3 The resolution itself is not in the record.

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successfully, that is, to manage its proceedings, vindicate its

authority, and effectuate its decrees." Peacock v. Thomas, 516

U.S. 349, 354 (1996) (quoting Kokkonen v. Guardian Life Ins. Co.,

511 U.S. 375, 379-80 (1994)). Here, the district court relied on

the second rationale, i.e., ancillary enforcement jurisdiction.

Enforcement jurisdiction is "a creature of necessity,"

which grants a federal court the "inherent power to enforce its

judgments." Id. at 356, 359; see also U.S.I. Props. Corp. v. M.D.

Constr. Co., 230 F.3d 489, 496 (1st Cir. 2000) ("The jurisdiction

of a Court is not exhausted by the rendition of its judgment, but

continues until that judgment shall be satisfied." (quoting Wayman

v. Southard, 23 U.S. (10 Wheat.) 1, 23 (1825) (alteration

omitted))). But the scope of ancillary enforcement jurisdiction

is limited by its purpose. Such jurisdiction does not exist "where

the relief [sought is] of a different kind or on a different

principle than that of the prior decree." Peacock, 516 U.S. at

358 (internal quotation marks omitted) (alteration in original).

Likewise, ancillary enforcement jurisdiction is inapt when a party

seeks "to impose an obligation to pay an existing federal judgment

on a person not already liable for that judgment." Id. at 357.4

4These principles apply both when the plaintiff invokes
enforcement jurisdiction in a second lawsuit, as occurred in
Peacock, and in the context of supplemental proceedings brought in
the original lawsuit under Federal Rule of Civil Procedure 69.
See U.S.I., 230 F.3d at 500 n.10.

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 In this appeal, the Municipality argues that Burgos-

Yantín's Motion for Execution of Judgment does not fall within the

district court's ancillary enforcement jurisdiction because the

motion seeks to impose a new obligation on the Municipality to pay

the "existing federal judgment" against the two police officers.

The Municipality also rejects the validity of the Secretary's Law

9 resolution and, consequently, the indemnification obligation it

purports to impose on the Municipality. Burgos-Yantín counters

that the resolution is valid and enforceable. Accordingly, she

argues, her motion is an appropriate procedural mechanism for

enforcing the judgment because, pursuant to the Law 9 resolution,

the Secretary has determined the Municipality's obligation to

indemnify the judgment rendered against the municipal officers.

A. The Validity of the Law 9 Resolution

The Municipality argues that the Secretary's resolution

is invalid because the Municipality was given no opportunity to

participate in the administrative process that led to its issuance,

an omission that the Supreme Court of Puerto Rico subsequently

ruled improper in a different case. See Municipio de Fajardo v.

Secretario de Justicia, 187 D.P.R. 245 (2012).5 In Fajardo, the

Puerto Rico Supreme Court held that in a Law 9 proceeding, the

5 A certified translation of the Fajardo decision, originally
submitted to the district court, is included in appellants'
appendix. See App'x at pp. 138-46.

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Secretary could not "unilaterally commit the funds of autonomous

municipalities without even giving them the opportunity to be

heard," and directed the Justice Department to "design a process

that grants participation to municipalities when deciding to grant

judgment payment benefits" that would have "the potential of

committing municipal funds." App'x at 144. The Law 9 resolution

at issue in Fajardo was voided, and "the matter was remanded to

the Secretary to reassess its determination after hearing from

Fajardo." Burgos-Yantin, 2014 WL 1096016, at *2.

As the district court's well-reasoned opinion explained,

see id. at **2-3, the decision in Fajardo does not help the

Municipality in this case. Under the administrative scheme in

place at the time the Secretary issued the Law 9 resolution

challenged here, the Municipality had fifteen days to seek judicial

review of the Secretary's decision. See P.R. Laws Ann. tit. 32,

§ 3087. It did not do so.6 Hence, "by the time the Municipality

first objected to the resolution -- after the [Puerto Rico] Supreme

6 Puerto Rico's Uniform Administrative Procedure Law ("UAPL")
provides for a thirty-day period for seeking judicial review of
administrative decisions. See P.R. Laws Ann. tit. 3, § 2172. The
Secretary's Law 9 resolutions qualify as administrative decisions.
App'x at 143 (Fajardo, 187 D.P.R. at 258 n.6) (explaining that the
UAPL applies to the Puerto Rico Department of Justice and thus to
Law 9 adjudications). We, however, need not consider the
interplay between the two deadlines because the Municipality
failed to meet even the longer one. See Burgos-Yantin, 2014 WL
1096016, at *2 ("In the three years since the administrative
proceedings ended and the resolution issued, the Municipality has
never sought to challenge it in state court.").

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Court's decision in Fajardo -- the [Law 9] resolution was already

final." Burgos-Yantin, 2014 WL 1096016, at *2.

The Municipality argues that notwithstanding that

Fajardo was decided in 2012, it applies to this case retroactively.

We disagree. The Fajardo court had the discretion to give

retroactive effect to its decision, see P.R. Laws Ann. tit. 31,

§ 3 annot. 1 ("The courts are the ones called to determine if a

decision should be retroactively applied or not." (citing Pedro

Quiles Rodríguez v. Superintendente de la Policía, 139 D.P.R. 272

(1995))), but "[n]othing in [the opinion] purported to revoke

final, unchallenged resolutions previously issued." Burgos-

Yantin, 2014 WL 1096016, at *2; cf. Pueblo v. Báez Cintrón, 2 P.R.

Offic. Trans. 42, 50 (P.R. 1974) (stating that "[w]e do not find

a grounded reason for imparting a retroactive effect to this

rule"). Indeed, as the district court aptly observed, "it is

worth recalling that the remedy that the Puerto Rico Supreme Court

required in Fajardo was forward-looking: the creation of a new

administrative scheme that would give municipalities a voice in

Law 9 decisions." Burgos-Yantin, 2014 WL 1096016, at *2 (emphasis

added).7 Thus, by the time the Municipality chose to contest the

Secretary's Law 9 resolution, it was final and unappealable.

7In an attempt to avoid the statutory time bar, the
Municipality emphasizes that it challenged the Secretary's
decision by filing an amicus brief with the Supreme Court in the
Fajardo case. This argument is meritless. The Municipality's

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 Having concluded that the Law 9 resolution is valid, we

consider whether the district court had jurisdiction to order the

Municipality to make the required payment to Burgos-Yantín.

B. The Applicability of Ancillary Enforcement Jurisdiction

The Supreme Court in Peacock cautioned courts against

exercising ancillary enforcement jurisdiction "over proceedings

that are entirely new and original." 516 U.S. at 358 (internal

quotation marks omitted). The plaintiff there, Thomas, had

obtained a judgment on an ERISA cause of action against his former

employer, Tru–Tech, Inc. After failing in his efforts to collect

from the company, Thomas filed a new action in federal court

seeking to impose liability on a Tru-Tech executive and

shareholder, Peacock, based, inter alia, on Peacock's alleged

siphoning of company funds to prevent payment to Thomas. The

district court granted judgment against Peacock in "the precise

amount of the [first] judgment against Tru-Tech." Id. at 352.

The Court of Appeals for the Fourth Circuit affirmed, holding that

the district court had properly exercised ancillary jurisdiction

over Thomas's suit.

In reversing, the Supreme Court rejected Thomas's

contention that his second suit fell within the federal court's

expression of support for a legal argument asserted by a different
municipality in a different case does not excuse its failure to
preserve that argument in its own proceeding.

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ancillary enforcement jurisdiction. Id. at 356. The Court

acknowledged that it had previously "approved the exercise of

ancillary jurisdiction over a broad range of supplementary

proceedings involving third parties to assist in the protection

and enforcement of federal judgments -- including attachment,

mandamus, garnishment, and the prejudgment avoidance of fraudulent

transfers." Id. In this instance, however, the Court concluded

that Thomas's second suit was not a means of executing the prior

judgment, but rather an impermissible attempt to shift the

liability imposed in the earlier litigation from Tru-Tech to

Peacock. Id. at 358. Indeed, Peacock had been named in the first

suit but found not liable. Id. at 351. The Court stated that it

had "never authorized the exercise of ancillary jurisdiction in a

subsequent lawsuit to impose an obligation to pay an existing

federal judgment on a person not already liable for that judgment."

Id. at 357.

The Municipality maintains that the circumstances here

are equivalent to those in Peacock because it, like defendant

Peacock, was dismissed from the case earlier, and Burgos-Yantín is

thus seeking to shift liability to a party "not already liable for

that judgment." Id. The circumstances here, however, are

materially different from Peacock. Most significantly, the new

claims in Peacock were premised on defendant Peacock's actions

after the original judgment was entered, and the plaintiff relied

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on a new theory of liability -- piercing the corporate veil -- to

seek the recovery from Peacock that previously had been assessed

against Tru-Tech. Id. at 353. Here, by contrast, Burgos-Yantín

is not seeking to hold the Municipality itself liable for its own

or the officers' conduct. That is, there is no claim of wrongdoing

by the Municipality, nor is there any claim that the Municipality

is liable for the conduct of the officers on some theory of

vicarious liability. Rather, Burgos-Yantín is attempting to

collect funds that the Secretary has determined the Municipality

must pay to satisfy the original judgment rendered against the

officers. In other words, Burgos-Yantín is seeking to enforce the

original judgment by enforcing the Municipality's statutory

obligation, pursuant to the Secretary's Law 9 resolution, to

indemnify the officers.

We have previously distinguished between collecting on

an original judgment and obtaining a new judgment in a separate

proceeding against a new party. In U.S.I. Properties, we noted

that courts routinely have exercised jurisdiction over a

"postjudgment claim [that] is simply a mode of execution designed

to reach property of the judgment debtor in the hands of a third

party." 230 F.3d at 496. We observed that "federal enforcement

jurisdiction is clear" when state procedural mechanisms -- "such

as garnishment or attachment" -- "allow the court to reach assets

of the judgment debtor in the hands of third parties in a

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continuation of the same action." Id. The Supreme Court in

Peacock also distinguished the new action challenged in that case

from the "broad range of supplementary proceedings involving third

parties" that courts have allowed pursuant to their ancillary

enforcement jurisdiction "to assist in the protection and

enforcement of federal judgments." Peacock, 516 U.S. at 356. The

Court expressly identified garnishment and attachment as among the

procedures that had been deemed permissible. See id.

The Municipality argues that the rationale for allowing

enforcement jurisdiction over proceedings seeking garnishment or

attachment of a judgment debtor's funds held by a third party does

not extend to funds "owed" as a result of an indemnification

arrangement. Indeed, we reserved judgment in U.S.I. Properties

on essentially this scenario: whether the federal courts'

enforcement jurisdiction covers proceedings against municipalities

that have contractual obligations to pay judgments on behalf of

impecunious police officers. 230 F.3d at 497 n.6. Although the

indemnification obligation here arises by statute, rather than

contract, the question of whether indemnification may be

equivalent to the mechanisms previously determined to support

enforcement jurisdiction is the same in either situation.

Now directly faced with that question, we conclude that

Burgos-Yantín's motion to execute judgment against the

Municipality, based on the Municipality's statutory obligation to

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pay, falls within the district court's enforcement jurisdiction.8

In practical terms, the jurisdictional inquiry here is largely

indistinguishable from that applicable to garnishment or

attachment. The Municipality's obligation to pay the damages

award won by Burgos-Yantín has been determined with finality under

state law, and that debt is not based on the Municipality's own

liability for the plaintiff's injury.9 Moreover, this is also not

a situation -- like Peacock or U.S.I. Properties -- where the

plaintiff asserted a new theory of direct liability. See, e.g.,

id. at 500 (noting that the plaintiff's "claim is not simply one

to collect a judgment already rendered but rather one to newly

establish liability directly on the part of a third party").

We thus conclude that the execution of judgment sought

by Burgos-Yantín bears a much stronger resemblance to the

8As we elaborate infra, we are not concluding that post-
judgment proceedings based on indemnification will always fall
within the court's ancillary enforcement jurisdiction. As the
Seventh Circuit observed, such jurisdiction may be inappropriate
where "the additional proceeding . . . inject[s] so many new
issues that it is functionally a separate case." Yang v. City of
Chicago, 137 F.3d 522, 526 (7th Cir. 1998) (quoting Wilson v. City
of Chicago, 120 F.3d 681, 684 (7th Cir. 1997)).
9To be sure, garnishment and attachment are not identical to
the indemnification procedure in this case. Unlike the
garnishment and attachment contexts, the funds at issue here were
never the municipal officers' property, and, indeed, the
Municipality must itself generate those proceeds. However, this
factor does not outweigh the similarities between the
indemnification here and the enforcement procedures listed in
Peacock that the Supreme Court viewed as within the federal courts'
enforcement jurisdiction.

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supplemental proceedings that the Court in Peacock identified as

enforcement mechanisms than to the new action it rejected as

impermissible. To reiterate our observation in U.S.I. Properties,

"[f]ederal courts have drawn a distinction between postjudgment

proceedings that simply present a mode of execution to collect an

existing judgment and proceedings that raise an independent

controversy with a new party, attempting to shift liability." 230

F.3d at 498.10 Simply put, Burgos-Yantín is seeking to collect on

a judgment from the party holding the proceeds she is owed. As

such, she is properly invoking the court's ancillary enforcement

jurisdiction. See Groden v. N&D Transp. Co. Inc., 866 F.3d 22,

29 (1st Cir. 2017) (explaining that in ancillary-enforcement

proceedings against third parties, a judgment creditor does not

seek to impose new liability for a money judgment, but attempts to

secure the judgment debtor's funds via a mechanism designed for

that purpose); IFC Interconsult, AG v. Safeguard Int’l Partners,

LLC, 438 F.3d 298, 312 (3d Cir. 2006) (contrasting Peacock, which

10Indeed, the Supreme Court in Peacock appeared to recognize
this distinction when it described two prior cases as consistent
with its holding because "[i]n those cases, we permitted a judgment
creditor to mandamus county officials to force them to levy a tax
for payment of an existing judgment." 516 U.S. at 358. The Court
went on to observe: "The order in each case merely required
compliance with the existing judgment by the persons with authority
to comply. We did not authorize the shifting of liability for
payment of the judgment from the judgment debtor to the county
officials, as Thomas attempts to do here." Id. We note that this
enforcement procedure is very similar to the one we upheld in
Acevedo-Garcia v. Vera-Monroig, 368 F.3d 49, 54-55 (1st Cir. 2004).

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"addressed whether ancillary jurisdiction was available to find

primary liability," with a prior circuit decision that "dealt with

ancillary jurisdiction to seek satisfaction of a judgment from a

party that is alleged to be secondarily liable based on an

indemnification agreement").

The Municipality argues that, even if ancillary

enforcement jurisdiction is appropriate based on an

indemnification theory, it is not proper here because Law 9 makes

the indemnification obligation discretionary rather than

mandatory. We fail to see any significance in that distinction

on the facts of this case. Before Burgos-Yantín filed her motion

for execution, the Secretary had exercised his discretion under

Law 9 in concluding that the Municipality must indemnify the

defendant officers. As discussed above, the Municipality failed

to challenge the Secretary's resolution either administratively or

through appeal to the Commonwealth courts. Accordingly, at this

point, the resolution is final, and it imposes a mandatory

obligation on the Municipality to pay the judgment on behalf of

the officers.

To be sure, in some cases, factual disputes or unresolved

issues of state law may counsel against assuming ancillary

enforcement jurisdiction over post-judgment proceedings based on

indemnification. As noted above, see supra note 8, we acknowledge

that a proceeding that involves "so many new issues that it is

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functionally a separate case," may be outside the scope of a

court's enforcement jurisdiction. Yang v. City of Chicago, 137

F.3d 522, 526 (7th Cir. 1998) (quoting Wilson v. City of Chicago,

120 F.3d 681, 684 (7th Cir. 1997)). Courts have expressed

different views as to when the need to address state law issues

forecloses such jurisdiction. In two cases cited by the

Municipality, for example, the courts disagreed about whether

unresolved scope-of-employment questions precluded ancillary

enforcement jurisdiction over indemnification-based claims. In

Yang, the Seventh Circuit held that the federal court could resolve

the scope-of-employment issue. See id. at 526. The Sixth Circuit

expressly disagreed with Yang, holding that a "legitimate,

unresolved dispute[] concerning whether conduct occurs within the

scope of employment or authority deprives a federal court of

ancillary jurisdiction in a garnishment action pursuant to

Peacock." Hudson v. Coleman, 347 F.3d 138, 146 (6th Cir. 2003).

In the Sixth Circuit's view, jurisdiction was improper when "[t]he

City's liability under the indemnification agreement" had not yet

been established. Id. at 143; see also id. at 144 (noting that

"substantial questions" remained concerning indemnification).11

11
The court in Hudson also noted that the plaintiff's "newly
presented indemnity principle" was premised on "hold[ing] the City
individually liable under the indemnity clause for the full amount
of the Officers' settlement." 347 F.3d at 144-45. The court
concluded that this theory of direct liability did not fall within
the supplementary proceedings allowed under Peacock: "The type of

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 Here, we have no unresolved questions of law or fact

concerning indemnification. We have a final determination by the

Secretary of Justice directing the Municipality to indemnify the

two officers. Burgos-Yantín's motion simply asks the federal

court to enforce her judgment by ordering the Municipality to

follow the Secretary's Law 9 determination, thus properly invoking

the court's ancillary enforcement jurisdiction.

C. Order for Execution of Judgment

Having determined that the district court properly

exercised jurisdiction over Burgos-Yantín's motion, we must

consider whether the district court's order to enforce the judgment

against the Municipality complies with Puerto Rico law. Under

Federal Rule of Civil Procedure 69, state law governs "not only

the parties' substantive rights [concerning execution of a

judgment] but also the procedure to be followed." Whitfield v.

Municipality of Fajardo, 564 F.3d 40, 43 (1st Cir. 2009). In

ordering that "the judgment of $30,000 in favor of Burgos[-Yantín]

be EXECUTED against the Municipality of Juana Díaz," the district

court directed the appointment of a receiver for "any property

garnished, attached, or restrained from the Municipality."

garnishment proceeding referred to in Peacock does not contemplate
making the garnishee personally liable on the judgment based on
some independent legal theory as [the plaintiff] seeks to do in
this case." Id. at 144.

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Burgos-Yantin, 2014 WL 1096016, at *3. 12 Because no party

addressed the issue, and we considered it important, we ordered

briefing on whether property belonging to a Puerto Rico

municipality may be attached.

We now conclude it is unnecessary to reach that question.

As we previously have noted, Puerto Rico law provides that the

funds needed by a municipality to pay a court judgment must be

allocated in the municipality's budget.13 See Acevedo-Garcia v.

Vera-Monroig, 368 F.3d 49, 54-55 (1st Cir. 2004); P.R. Laws Ann.

tit. 21, § 4303(c). In Acevedo-Garcia, we went on to determine

that a court order directing that "future budgets take account of

a court judgment" does not create an attachment of public funds.

Id. at 56 (citing Librotex, Inc. v. P.R. Aqueducts & Sewer Auth.,

138 D.P.R. 938, 942-43 (1995), for the proposition that "direct

attachment of the funds of a public agency [is] impermissible, but

an equitable order requiring the judgment to be included in the

agency's next budget cycle [is] acceptable"). We have thus

recognized that Puerto Rico law authorizes a procedure for

executing a monetary judgment that does not implicate our concern

about the attachment of municipal property.

12 This order mirrored the plaintiff's request to the court.
13Law 9 also provides that if the municipality does not have
enough funds to pay the judgment, the balance is paid by the
Commonwealth. See P.R. Laws Ann. tit. 32, § 3092.

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 Consistent with our precedent, and the law of Puerto

Rico, the district court should enter an order directing the

Municipality of Juana Díaz to allocate funds in its budget for the

next fiscal year providing for the payment of the judgment at issue

in this case. To the extent that there are any issues concerning

the timing of the preparation of the next municipal budget, or the

way in which that allocation of funds to pay the judgment should

be set forth in the budget, the district court should work out

those details with the parties.

So ordered. Costs to appellee.

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