Case: 13-16285, 06/10/2015, ID: 9569953, DktEntry: 85, Page 1 of 23

No. 13-16285
No. 13-17238

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MANUEL DE JESUS ORTEGA MELENDRES, ET AL.,

Plaintiffs-Appellees
v.
JOSEPH M. ARPAIO, ET AL.,
Defendants-Appellants

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA
2:07-cv-02513-GMS
The Honorable G. Murray Snow
United States District Judge
APPELLEES RESPONSE TO PETITION OF MARICOPA COUNTY,
ARIZONA FOR PANEL REHEARING AND EN BANC DETERMINATION
Stanley Young
Hyun S. Byun
COVINGTON & BURLING LLP
333 Twin Dolphin Drive, Suite 700
Redwood Shores, CA 94065-1418
Telephone: (650) 632-4700
Facsimile: (650) 632-4800
syoung@cov.com
hbyun@cov.com

Tammy Albarran
Rebecca A. Jacobs
COVINGTON & BURLING LLP
One Front Street
San Francisco, CA 94111
Telephone: (415) 591-7066
Facsimile: (415) 955-6566
talbarran@cov.com
rjacobs@cov.com
(counsel continued on next page)

Attorneys for Plaintiffs-Appellees

MANUEL DE JESUS ORTEGA MELENDRES, ET AL.

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Dan Pochoda
ACLU FOUNDATION OF ARIZONA
3707 N. 7th St., Ste. 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
Facsimile: (602) 650-1376
dpochoda@acluaz.org

Cecillia D. Wang
ACLU FOUNDATION
IMMIGRANTS RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
Telephone: (415) 343-0775
Facsimile: (415) 395-0950
cwang@aclu.org

Andre Segura
ACLU FOUNDATION
IMMIGRANTS RIGHTS PROJECT
125 Broad Street, 17th Floor
New York, NY 10004
Telephone: (212) 549-2676
Facsimile: (212) 549-2654
asegura@aclu.org

Anne Lai
401 E. Peltason Dr.
Law 4800-P
Irvine, CA 92697-8000
Telephone: (949) 824-9894
Facsimile: (949) 824-0066
alai@law.uci.edu

Jorge Martin Castillo

MEXICAN AMERICAN LEGAL AND
EDUCATIONAL FUND
634 South Spring Street, 11th Floor
Los Angeles, CA 90014
Telephone: (213) 629-2512
Facsimile: (213) 629-0266
jcastillo@maldef.org
Attorneys for Plaintiffs-Appellees
MANUEL DE JESUS ORTEGA MELENDRES, ET AL.

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TABLE OF CONTENTS
INTRODUCTION ..................................................................................................... 1
STATEMENT OF FACTS ........................................................................................ 2
REASONS THAT THE PETITION SHOULD BE DENIED .................................. 3
I.

The Removal of MCSO Justifies the Joinder of the County,

Which Is Liable for the Sheriffs Constitutional Violations. .......................... 4

II.

The Countys Policymaking Has Been at Issue Throughout

the Case, and the County Is Therefore a Real Party in Interest....................... 6

III.

The Structure of the Arizona Government Does Not Make

Joinder Improper. ............................................................................................. 7

IV.

The Panels Decision Does Not Realign the Countys

Government Structure or Otherwise Violate Any
Principles of Federalism. ............................................................................... 11

V.

The County Is Bound by the Judgments Against MCSO and the

Sheriff in His Official Capacity. .................................................................... 12

VI.

The Countys Presence as a Party in the Case Will Better

Ensure Full Relief to the Plaintiff Class and Is on Just Terms. ................. 13

VII. The County Poses No Serious Questions Arising from the

Courts Order to Join the County. ................................................................. 15
CONCLUSION ........................................................................................................ 15

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TABLE OF AUTHORITIES
Page(s)
CASES
Braillard v. Maricopa Cnty.,
232 P.3d 1263 (Ariz. Ct. App. 2010) ...........................................................passim
Cameron v. Gila Cnty.,
No. CV11-80-PHX-JAT, 2011 WL 2115657
(D. Ariz. May 26, 2011) ..................................................................................... 13
Cortez v. Cnty. of Los Angeles,
294 F.3d 1186 (9th Cir. 2002) .............................................................................. 6
Ellman Land Corp. v. Maricopa Cnty.,
884 P.2d 217 (Ariz. Ct. App. 1994) .................................................................... 13
Flanders v. Maricopa Cnty.,
54 P.3d 837 (Ariz. Ct. App. 2002) ..................................................................6, 14
Guillory v. Greenlee Cnty.,
No. CV05-352TUC DCB, 2006 WL 2816600
(D. Ariz. Sept. 28, 2006) ....................................................................................... 6
Herrington v. Cnty. of Sonoma,
12 F.3d 901 (9th Cir. 1993) ................................................................................ 12
Hounshell v. White,
220 Ariz. 1 (App. 2008) .................................................................................... 8, 9
In re Gottheiner,
703 F.2d 1136 (9th Cir. 1983) ............................................................................ 12
Kentucky v. Graham,
473 U.S. 159 (1985) ....................................................................................1, 7, 14
Lovejoy v. Arpaio,
No. CV09-1912PHXNVW, 2010 WL 466010
(D. Ariz. Feb. 10, 2010) ........................................................................................ 6
Maier v. Lucent Tech., Inc.,
120 F.3d 730 (7th Cir. 1997) .............................................................................. 10
ii

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McMillian v. Monroe Cnty., Ala.,

520 U.S. 781 (1997) .............................................................................................. 5
Melendres v. Arpaio,
784 F.3d 1254 (9th Cir. 2015) ......................................................................2, 3, 9
Monell v. Dept of Soc. Servs. of City of New York,
436 U.S. 658 (1978) ....................................................................................5, 7, 12
Mora v. Arpaio,
No. CV-09-1719-PHX-DGC, 2011 WL 1562443
(D. Ariz. Apr. 25, 2011)........................................................................................ 6
Natl Fed. of Indep. Bus. v. Sebelius,
132 S. Ct. 2566 (2012) ........................................................................................ 11
Normandeau v. City of Phoenix,
516 F. Supp. 2d 1054 (D. Ariz. 2005) ................................................................ 13
Ortega Melendres v. Arpaio,
598 F. Supp. 2d 1025 (2009) ................................................................................ 2
Pembaur v. City of Cincinnati,
475 U.S. 469 (1986) .............................................................................................. 6
Puente Arizona v. Arpaio,
No. CV-14-01356-PHX-DGC, 2015 WL 1432674 (D. Ariz. Mar.
27, 2015) ..................................................................................................... 6, 8, 14
Puente Arizona v. Arpaio,
No. CV-14-01356-PHX-DGC, 2015 WL 58671 (D. Ariz. Jan. 5,
2015) ..................................................................................................................... 6
Rizzo v. Goode,
423 U.S. 362 (1976) ............................................................................................ 11
Smalley v. Contino,
No. CV12-2524-PHX-DGC, 2013 WL 858103 (D. Ariz. Mar. 7,
2013) ..................................................................................................................... 6
Streit v. Cnty. of Los Angeles,
236 F.3d 552 (9th Cir. 2001) ................................................................................ 5

iii

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Tait v. W. Maryland Ry. Co.,

289 U.S. 620 (1933) ............................................................................................ 13
United States v. Maricopa Cnty., Ariz.,
915 F. Supp. 2d 1073 (D. Ariz. 2012) .................................................................. 6
Washington Mut. Inc. v. United States,
636 F.3d 1207 (9th Cir. 2011) ............................................................................ 12
Zuk v. Gonzalez,
No. 507-CV-732, 2007 WL 2163186 (N.D.N.Y. July 26, 2007) ....................... 10
STATUTES
42 U.S.C. 1983 ..................................................................................................5, 14
Ariz. Rev. Stat. Ann. 11-401.............................................................................8, 13
Ariz. Rev. Stat. Ann. 11-441................................................................................... 5
Ariz. Rev. Stat. Ann. 11-444................................................................................... 5
CONSTITUTIONAL PROVISIONS
Ariz. Const. art. XII, 1 ............................................................................................ 8
Ariz. Const. art. XII, 3 ............................................................................................ 8
Ariz. Const. art XII, 4 ............................................................................................. 5
RULES
Fed. R. App. P. 35 ..............................................................................................1, 3, 4
Fed. R. App. P. 40 ..............................................................................................1, 3, 4
Fed. R. Civ. P. 19 ....................................................................................................... 9
Fed. R. Civ. P. 20 ..................................................................................................... 10
Fed. R. Civ. P. 21 .............................................................................................3, 9, 13

iv

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INTRODUCTION
The Petition of Maricopa County, Arizona for Panel Rehearing and En Banc
Determination (Petition) fails to identify how the panels unanimous decision to
substitute Maricopa County (County) for the Maricopa County Sheriffs Office
(MCSO) conflicts with any precedent of this Court or the Supreme Court, or
overlooks any material legal or factual issue.
The finding that MCSO is a nonjural entity justifies the substitution of the
County, in accord with the decision of the Arizona Court of Appeals on which the
panel relied. The substitution also comports with well-settled rules concerning the
liability of counties for constitutional torts committed by their officers.
This action has always been about policies that the Sheriff executed as a
final policymaker of the County. See Kentucky v. Graham, 473 U.S. 159, 166
(1985) (. . . [A]n official-capacity suit is, in all respects other than name, to be
treated as a suit against the entity.). The Countys addition as a party requires no
realignment of its governmental structure and violates no principle of federalism.
The County is bound by the judgments against MCSO and the Sheriff, because
there is substantial identity of interest between the County and the Sheriff in this
case. The Petition fails to meet the standards of Federal Rules of Appellate
Procedure 35 and 40 and should therefore be denied.

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STATEMENT OF FACTS
In December of 2007, Plaintiffs filed this action against Sheriff Joseph M.
Arpaio and the County. Compl., Dkt. No. 1. On September 5, 2008, Plaintiffs
filed a First Amended Complaint against the Sheriff and the County and also added
MCSO as a defendant. Dkt. No. 18. MCSO filed a Motion to Dismiss, contending
that it was a nonjural entity incapable of being sued in its own name. The District
Court refused to dismiss MCSO as a nonjural entity, noting that this issue [wa]s
very much unsettled. Ortega Melendres v. Arpaio, 598 F. Supp. 2d 1025, 1039
(2009); Dkt. No. 49.
The County, along with the Sheriff and MCSO, continued to defend the
action until September 21, 2009. At that time, the County and Plaintiffs filed a
stipulation dismissing the County from the action (Joint Motion to Dismiss).
Dkt. No. 178. The stipulation provided that the Countys dismissal was without
prejudice to rejoining [the County] as a Defendant at a later time in this lawsuit if
doing so becomes necessary to obtain complete relief. Id. at 3. On October 13,
2009, the Joint Motion was granted. Dkt. No. 194. The lawsuit continued, as
described in the panels decisions, 695 F.3d 990 (9th Cir. 2012) and 784 F.3d 1254
(9th Cir. 2015).
In 2010, in a case involving a wrongful death alleged to have been caused by
inadequate training of MCSO personnel, the Arizona Court of Appeals held that

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MCSO is a nonjural entity. Braillard v. Maricopa Cnty., 232 P.3d 1263, 1275
(Ariz. Ct. App. 2010). It stated, Because we have concluded MCSO is a nonjural
entity, such a claim, based on the training issues identified in our discussion of
Arpaios liability, can be made properly against the County. Id.
In 2013, the District Court concluded that the Sheriff and MCSO had
violated the Fourth and Fourteenth Amendments and awarded injunctive relief.
Dkt. Nos. 579, 606, 748. Sheriff Arpaio and MCSO appealed, and this Court
issued its panel decision on April 15, 2015, affirming the liability findings and the
injunctive remedy, with the sole exception of one injunctive provision, which was
remanded for further tailoring.
However, citing the intervening Braillard decision, the unanimous panel
stated, it is now clear that MCSO has improperly been named as a party in this
action, and pursuant to Federal Rule of Civil Procedure 21, it ordered that
Maricopa County be substituted for MCSO. Melendres v. Arpaio, 784 F.3d 1254,
1260 (9th Cir. 2015). The County now challenges the substitution, seeking a panel
rehearing or en banc determination.
REASONS THAT THE PETITION SHOULD BE DENIED
The Petition fails to meet the standards of Federal Rules of Appellate
Procedure 35 and 40. En banc rehearing is not favored and ordinarily will not be
ordered unless (1) en banc consideration is necessary to secure or maintain

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uniformity of the courts decisions; or (2) the proceeding involves a question of

exceptional importance. Fed. R. App. P. 35(a). The Petition does not meet this
standard. Petitions for panel rehearing must state with particularity each point of
law or fact that the petitioner believes the court has overlooked or
misapprehended. Fed. R. App. P. 40(a)(2). There are no questions of law or fact
that the panel has overlooked or misapprehended.
I.

The Removal of MCSO Justifies the Joinder of the County, Which Is

Liable for the Sheriffs Constitutional Violations.
The Arizona Court of Appeals has explicitly pointed out that claims against

MCSO, a nonjural entity, are properly asserted against the County instead.
Braillard, 232 P.3d at 1275 (Because we have concluded MCSO is a nonjural
entity, such a claim, based on the training issues identified in our discussion of
Arpaios liability, can be made properly against the County.). The Petition argues
that the County should not be joined because the County (which the Petition seeks
to define as primarily the Countys Board of Supervisors, see Petition at 3, n.1) is
separate and independent from the Sheriff, his office, and other constitutional
officers. Petition at 7-8. But such separate jural existence is precisely what the
Arizona Court of Appeals rejected in Braillard. Adding the County as a named
party is the logical consequence of Braillards conclusions that MCSO has no jural
existence apart from the County and that an action brought putatively against
MCSO is really an action against the County.
4

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Further, the County is actually liable for harms caused by the

unconstitutional policies set by the Sheriff acting as the Countys law enforcement
officer. It is well-established that a county or municipality is liable under
42 U.S.C. 1983 when policies executed by those whose edicts or acts may fairly
be said to represent official policy inflict constitutional injury. Monell v. Dept of
Soc. Servs. of City of New York, 436 U.S. 658, 659 (1978). In evaluating a
countys liability for constitutional torts committed by its officers, a court must
consider the states legal characterization of the government entities which are
parties to these actions[;] however, federal law provides the rule of decision in
section 1983 actions. Streit v. Cnty. of Los Angeles, 236 F.3d 552, 560 (9th Cir.
2001); see also McMillian v. Monroe Cnty., Ala., 520 U.S. 781, 786 (1997) (an
officials final policymaking authority for a county is dependent on state law).
On matters of law enforcement, Sheriff Arpaio is the final policymaker for
Maricopa County. 1 The Countys liability for the Sheriffs unconstitutional

The Arizona Constitution provides that the Sheriffs duties and powers shall be
prescribed by law. Ariz. Const. art XII, 4. Under Ariz. Rev. Stat. 11-441, the
Sheriff is empowered to [a]rrest and take before the nearest magistrate for
examination all persons who attempt to commit or who have committed a public
offense. Id. The County funds the actual and necessary expenses incurred by
the [S]heriff in pursuit of criminals, for transacting all civil or criminal business
and for service of all process and notices. Ariz. Rev. Stat. Ann. 11-444(A);
Braillard, 232 P.3d at 1269 n.2. The Sheriff also must account his monthly
expenses to the County. Ariz. Rev. Stat. Ann. 11-444(C).

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policymaking in that field is the necessary consequence. See Flanders v. Maricopa

Cnty., 54 P.3d 837, 847 (Ariz. Ct. App. 2002) (concluding in jail conditions case
that the Sheriff is a final policymaker for the County for purposes of 42 U.S.C.
1983 liability); Puente Arizona v. Arpaio, No. CV-14-01356-PHX-DGC, 2015 WL
58671, at *25 (D. Ariz. Jan. 5, 2015) (Flanders compels the conclusion that
Sheriff Arpaio is the final policymaker for [Maricopa] County on law-enforcement
matters.); Pembaur v. City of Cincinnati, 475 U.S. 469, 484 n.12 (1986)
(decisions over which a sheriff is the official policymaker give rise to county
liability); Cortez v. Cnty. of Los Angeles, 294 F.3d 1186, 1192 (9th Cir. 2002) (a
county is subject to 1983 liability where its sheriff acted as final policymaker).2
II.

The Countys Policymaking Has Been at Issue Throughout the Case,

and the County Is Therefore a Real Party in Interest.
The Petition argues that because the Plaintiffs claims focus primarily on the

practices of the Sheriff and MCSO without specifically accusing the County, the
County is not a proper party to the case. Petition at 6. But this is contrary to

See also Puente Arizona, 2015 WL 1432674, at *1 (Maricopa County is liable for
the Sheriffs law-enforcement decisions); Smalley v. Contino, No. CV12-2524PHX-DGC, 2013 WL 858103, at *5 (D. Ariz. Mar. 7, 2013) (same); United States
v. Maricopa Cnty., Ariz., 915 F. Supp. 2d 1073, 1084 (D. Ariz. 2012) (same);
Mora v. Arpaio, No. CV-09-1719-PHX-DGC, 2011 WL 1562443, at *7 (D. Ariz.
Apr. 25, 2011) (same); Lovejoy v. Arpaio, No. CV09-1912PHXNVW, 2010 WL
466010, at *13 (D. Ariz. Feb. 10, 2010) (same); Guillory v. Greenlee Cnty., No.
CV05-352TUC DCB, 2006 WL 2816600, at *5 (D. Ariz. Sept. 28, 2006)
(Greenlee County is liable for its sheriffs law-enforcement decisions).

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controlling authorities, supra, which hold that the County is liable for the practices
of the Sheriff and MCSO, and that the County is a real party in interest.
Official capacity suits are a way of pleading an action against an entity of
which an officer is an agent. Kentucky, 473 U.S. at 165 (citing Monell, 436 U.S.
at 690 n.55). The Supreme Court has made plain that, [a]s long as the
government entity receives notice and an opportunity to respond, an official
capacity suit is, in all respects other than name, to be treated as a suit against the
entity. Id. at 166. As such, the real party in interest is the entity. Id.
The County has had notice and opportunity to respond. It was notified of
this suit by service with a summons, Dkt. No. 8, and it was named in the Plaintiffs
initial and first amended complaints, Dkt. Nos. 1, 26. The parties Joint Motion to
Dismiss shows that the County not only had opportunity to respond, but took
advantage of that opportunity. Dkt No. 178.
III.

The Structure of the Arizona Government Does Not Make Joinder

Improper.
The Petition contends that joinder is improper because the County is not

vertically integrated, so that joinder of the County makes the Board of Supervisors
a defendant in an action where it has no control over the conduct to be enjoined
(i.e., the Sheriffs). Petition at 10.
The Countys argument rests on the flawed premise that the Board of
Supervisors alleged lack of control over the Sheriff is a defense to the Countys
7

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liability. See Petition at 7-8 (citing Hounshell v. White, 220 Ariz. 1, 5-6 (App.
2008)). This is an argument that the County has made multiple times in an attempt
to escape liability, and it has lost every time because that alleged fact is irrelevant
under the controlling law. See, e.g., Puente Arizona v. Arpaio, No. CV-14-01356PHX-DGC, 2015 WL 1432674, at *2 (D. Ariz. Mar. 27, 2015) (Contrary to the
Countys argument, a countys lack of control over a sheriff is not dispositive of its
liability for his law-enforcement decisions under 1983.).
The Petition rests on a definition of the County that includes only the
Board of Supervisors and County Manager and those who serve under them, while
explicitly excluding other elected officials, such as the Sheriff, and those who
serve under such officials. See Petition at 3, n.1. But Arizona law defines the
county as more than just the Board of Supervisors, the County Manager, and those
who serve under them. The Arizona Constitution provides that each county shall
be a body politic and corporate. Ariz. Const. art. XII, 1. The Board of
Supervisors and the Sheriff are each among the nine enumerated officers of the
County. Ariz. Const. art. XII, 3; Ariz. Rev. Stat. Ann. 11-401. The entity that
is liable is the County as it is defined under these Arizona laws. For purposes of
enforcement of Plaintiffs rights, the County includes the Sheriff and MCSO as
much as it includes the Board of Supervisors and the rest of the Countys

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enumerated officers and their offices. The County is a proper party in a lawsuit
over the unconstitutional actions of its Sheriff.3
The Petition also claims that the County is not a necessary party under
Federal Rule of Civil Procedure 19. Id. at 11. This argument fails because it
assumes that the County cannot be properly joined other than under Federal Rule
of Civil Procedure 19 (Required Joinder of Parties). Petition at 10. But the
panel did not rely on Rule 19 in its decision, Melendres, 784 F.3d at 1260, and it
had no need to do so. On the contrary, the panel correctly cited Rule 21, which
states, Misjoinder of parties is not a ground for dismissing an action. On motion
or on its own, the court may at any time, on just terms, add or drop a party . . . .
Fed. R. Civ. P. 21. The panels decision accomplished what the District Court also
could have ordered at any point in the litigation, which is to name the proper party
in place of MCSO. The Federal Rules of Civil Procedure also allow for permissive
joinder under Rule 20. See Fed. R. Civ. P. 20 (defendants may be joined if (A)

The Countys reliance on Hounshell is misplaced. Hounshell, which holds that a

county Board of Supervisors may not discipline employees who report to a sheriff,
simply is not relevant to the present case. In Hounshell, the court was concerned
only with the allocation of powers within the government of a county. The holding
of the case implies nothing about the rights of an external party who is suing the
county. As against such an external party, the county is a single unitary entity,
which is responsible for the acts of all of its components. See Hounshell, 220 Ariz.
at 6 (Finally, we recognize that a complaining party can argue that a county may
incur liability in the event that a county officer declines to discipline an employee
engaged in misconduct.).

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any right to relief is asserted against them jointly, severally, or in the alternative
with respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences; and (B) any question of law or fact common to all
defendants will arise in the action.). The claims against the County and the
Sheriff arise out of the same series of occurrences, and there are common questions
of law and fact. Substituting the County for MCSO is proper under Rules 20 and
21. 4
The Petition suggests that the parties Joint Motion to Dismiss should
govern the circumstances under which the County can be joined in this lawsuit, see
Petition at 11, but this Court is not bound by the parties stipulation.5 The panels
decision was proper.

Substitutions of real parties in interest are not unusual. See, e.g., Zuk v. Gonzalez,
No. 507-CV-732 FJS/DEP, 2007 WL 2163186, at *2 (N.D.N.Y. July 26, 2007)
(Since the Court has dismissed all of the claims against all of the individual
Defendants, no Defendant remains. Nonetheless, to the extent that Plaintiff has
named the individual Defendants in their official capacities, he has in essence
named Onondaga County-his actual employer-as a Defendant . . . in the interest of
judicial economy, the Court will sua sponte substitute Onondaga County as the
sole Defendant.); Maier v. Lucent Tech., Inc., 120 F.3d 730, 733, n.1 (7th Cir.
1997) (granting motion to substitute successor entity Lucent Technologies, Inc. for
AT&T where organizational unit of AT&T became part of Lucent and therefore
was the real party in interest in the appeal).
5
Indeed, the parties themselves are not bound by that stipulation, since it expressly
provided for the County to be joined as a defendant in the future if necessary.
Moreover, when the parties filed their Joint Motion to Dismiss in September 2009,
Dkt. No. 178, the Arizona Court of Appeals had not yet concluded that MCSO was
a nonjural entity. See Braillard, 232 P.3d 1263. So while it was true at the time
(continued)

10

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IV.

The Panels Decision Does Not Realign the Countys Government

Structure or Otherwise Violate Any Principles of Federalism.
Naming the County as a defendant does not compel a realignment of the

Countys government structure or otherwise violate any principles of federalism.

See Petition at 12-14. As explained above, as an officer with final policymaking
authority in the area of law enforcement for the County, the Sheriff, in effect, is the
County when he sets such policies and engages in law enforcement practices. The
County, even prior to being named, has therefore been subject to the Courts
injunctive orders. Its formal addition as a named party causes no realignment of
any sort. Rizzo v. Goode, 423 U.S. 362, 378-379 (1976), which states that
plaintiffs seeking to enjoin governmental agencies must contend with the wellestablished rule that the Government has traditionally been granted the widest
latitude in the dispatch of its own internal affairs, and Natl Fed. of Indep. Bus. v.
Sebelius, 132 S. Ct. 2566 (2012), which the County cites to argue that the panels
decision erodes state sovereigntys check on federal power, Petition at 14-15, are
both inapposite in light of the uncontested principle that the County can be held
liable under federal law for the constitutional torts of their officers whose acts

( footnote continued from previous page)

that the County was not a necessary party at th[at] juncture, circumstances have
changed.

11

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may fairly be said to represent official policy. Monell, 436 U.S. at 694. Neither
of those cases allows the County, through its officer the Sheriff, to violate the
Federal Constitution, and neither bars the formal addition of the County as a party
to facilitate a remedy for such violation.
V.

The County Is Bound by the Judgments Against MCSO and the Sheriff
in His Official Capacity.
In its effort to be dismissed, the County warns that, if it remains as a

defendant in the case, it will seek to relitigate prior judgments. However, the
County is bound by the earlier decisions of the District Court and of this Court.
Under the law of the case doctrine, the decision of an appellate court on a legal
issue must be followed in all subsequent proceedings in the same
case. Herrington v. Cnty. of Sonoma, 12 F.3d 901, 904 (9th Cir. 1993) (citation
omitted). It is also basic civil procedure that [c]ollateral estoppel applies not only
against actual parties to prior litigation, but also against a party that is in privity to
a party in previous litigation. Washington Mut. Inc. v. United States, 636 F.3d
1207, 1216 (9th Cir. 2011). Privity exists when there is substantial identity
between parties, that is, when there is sufficient commonality of interest. In re
Gottheiner, 703 F.2d 1136, 1140 (9th Cir. 1983).
Identity of interest can be established in a number of ways, but it is
determinative that [a]n action against a government officer in her official capacity
is ordinarily equivalent to an action against the government entity itself.
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Normandeau v. City of Phoenix, 516 F. Supp. 2d 1054, 1070 (D. Ariz. 2005)
(judgment for Motor Vehicle Division served to bind plaintiff in a later suit against
Director of Motor Vehicle Division in her official capacity); see also Tait v. W.
Maryland Ry. Co., 289 U.S. 620, 626 (1933) (judgment against the Commissioner
of Internal Revenue in his official capacity bound the United States in a later suit).
Here, there is identity of interest for the same reason.6 The County may not
relitigate any issues of law or fact that have already been actually adjudicated
against the Sheriff.
VI.

The Countys Presence as a Party in the Case Will Better Ensure Full
Relief to the Plaintiff Class and Is on Just Terms.
The panels substitution of the County is on just terms pursuant to Federal

Rule of Civil Procedure 21, because it will help to ensure that the victims of
Sheriff Arpaio and the County obtain a full remedy for the violations of their
constitutional rights. See Cameron v. Gila Cnty., No. CV11-80-PHX-JAT, 2011
WL 2115657, at *7 (D. Ariz. May 26, 2011) (. . . [T]he Payson Police Department
is a nonjural entity and must be dismissed from this suit. The dismissal of the

Under Arizona law too, serving or suing a county officer is the same as suing the
County with respect those matters for which the officer is the countys ultimate
decision-maker. See Ellman Land Corp. v. Maricopa Cnty., 884 P.2d 217, 220
(Ariz. Ct. App. 1994) (county assessor (who, like the Sheriff is also an enumerated
county officer under Ariz. Rev. Stat. 11-401) had sufficient identity of interest
with the county that service of process on the assessor satisfied the requirement of
service on the county).

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Police Department will not deprive Plaintiff of any remedies because he has sued
the Town of Payson, the proper political subdivision.). The full remedy includes
monetary compensation due to contempt of the District Courts preliminary
injunction, which the District Court is currently considering. Dkt. No. 880.
The Countys claim that its substitution was wholly unexpected is both
untrue and irrelevant. Petition at 5. When the County withdrew, it agreed that it
could be rejoined at a later time. Dkt. No. 178 at 3. The Countys liability for
1983 claims brought against the Sheriff in his official capacity has been clearly
established. See, e.g., Puente Arizona, 2015 WL 1432674, at *1. Moreover, the
County was on notice that a 1983 judgment imposes liability upon the public
entity that the official represents, whether or not that entity is joined as a party,
provided the public entity received notice and an opportunity to respond.
Flanders, 54 P.3d at 847 (emphasis in original); see also Kentucky, 473 U.S. at
166. The County did in fact receive notice of the action. See Summons, Dkt. No.
8. Further, the County has been paying the Defendants legal bills, Plaintiffs fee
awards, and the costs of a Monitor. Under existing law, the County had every
reason to know that this lawsuit concerned it and that its formal party status might
someday be restored.

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VII. The County Poses No Serious Questions Arising from the Courts Order
to Join the County.
The answers to all of the Countys questions (Petition at 15-17) spring
simply out of the principles already set forth above. Due to its privity with the
Sheriff, the County is bound by prior decisions in this case, consistent with due
process, with no right of retrial and no right to seek further modification or further
appeal, beyond whatever rights the Sheriff himself has, since the County has been
aware of the proceedings and its interests have been fully represented all along by
the Sheriff and the MCSO. The Countys pending appeal, Case No. 13-16285,
should be dismissed.
CONCLUSION
For the foregoing reasons, the Court should deny the Countys request for
rehearing or rehearing en banc.

Dated: June 10, 2015

Respectfully submitted,
COVINGTON & BURLING LLP
/s/ Stanley Young
STANLEY YOUNG
Attorneys for Plaintiffs

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CERTIFICATE OF COMPLIANCE
I certify that pursuant to Circuit Rule 35-4 or 40-1, the attached answer is in
compliance with Fed. R. App. P. 32(c) and does not exceed 15 pages.
Date: June 10, 2015

/s/ Stanley Young

STANLEY YOUNG

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CERTIFICATE OF SERVICE
I hereby certify that on June 10, 2015, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system.
Date: June 10, 2015

/s/ Stanley Young

STANLEY YOUNG

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