Johnson, et al v. Memphis, City of

Filing 701

ORDER denying (138) Motion to Enforce Judgment; denying (141) Motion to Enforce Agreed Order; denying (149) Motion for Clarification in case 2:04-cv-02017-STA-tmp; denying (668) Motion to Enforce Judgment; denying (673) Motion to Enforce Agreed Order; denying (685) Motion for Clarification in case 2:00-cv-02608-STA-tmp. Signed by Judge S. Thomas Anderson on 8/24/16. Associated Cases: 2:00-cv-02608-STA-tmp, 2:04-cv-02017-STA-tmp(Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
MARILYN JOHNSON et al.,

)
)
Plaintiffs,
)
v.
)
No. 00-2608-STA-tmp
)
No. 04-2017-STA-tmp
CITY OF MEMPHIS,
)
)
Defendant.
)
______________________________________________________________________________
ORDER DENYING DEFENDANT’S MOTION TO ENFORCE AGREED ORDER
ORDER DENYING DEFENDANT’S MOTION TO CLARIFY
ORDER DENYING PLAINTIFFS’ MOTION TO ENFORCE JUDGMENT
______________________________________________________________________________
Before the Court are Plaintiffs Marilyn Johnson et al.1 (no. 00-2608)’s Motion to Enforce
Judgment (ECF No. 668) filed on January 4, 2016; and Defendant City of Memphis’ Motion to
Enforce Agreed Order (ECF No. 673) filed on January 25, 2016, and Motion Seeking
Clarification (ECF No. 685) filed on May 31, 2016. Each non-moving party has responded to
the other party’s Motion. For the reasons set forth below, the Johnson I Plaintiffs’ Motion is
DENIED, and Defendant’s Motions are DENIED.
BACKGROUND
I. Procedural History
The full factual and procedural history of these consolidated police promotions cases has
been exhaustively set out in the previous orders of the Court and in two appellate opinions from
1

The twenty-three moving Plaintiffs from case no. 00-2608 (collectively the “Johnson I
Plaintiffs”) are Glenda Brown, Tracy Burford, Robbin Campbell, Anthony Davis, Charlotte
Easter, Larry Echols, Phillip Jackson, Marilyn Johnson, Chorcie Jones, Ursala Jones, Stacey
Lamondue, Kathleen Lanier, Edward Luellen, Durand Martin, Alisa Mitchell, Alvin Moore,
Lesley Murrell, Herlancer Ross, Celia Tisby, Vernon VanBuren, Steven Ware, Kedzie White,
and Constance Young.
1

the United States Court of Appeals for the Sixth Circuit, most recently in Johnson v. City of
Memphis, 770 F.3d 464 (6th Cir. 2014). Briefly, on March 4, 2013, the Court entered judgment
in favor of the Plaintiffs in each of the cases. The Court and the parties have referred to the cases
as Johnson I (no. 00-2608-STA-tmp), Billingsley (no. 04-2013-STA-tmp), and Johnson II (no.
04-2017-STA-tmp). The Court granted Plaintiffs, officers of the Memphis Police Department,
remedies for Defendant’s violations of Title VII of the Civil Rights Act of 1964 as part the City’s
administration of police promotion tests in 2000 and 2002. Both sides’ appealed the Court’s
judgment.
On October 27, 2014, the Sixth Circuit issued its opinion, reversing the Court’s
judgment in favor of the Plaintiffs in Billingsley and Johnson II on their Title VII disparate
impact claims related to the 2002 promotion process. The Court of Appeals held that “[b]ecause
plaintiffs failed to present evidence establishing a genuine issue of fact regarding the availability
of equally valid, less discriminatory alternative testing methods, their step-three showing [as to
the 2002 process] fails as a matter of law.”2 The Sixth Circuit therefore reversed “the district
court’s Title VII judgment invalidating the 2002 process, thereby MOOTING plaintiffs’
challenge to the district court’s choice of remedies for the 2002 process,” vacated the award of
attorney’s fess, and remanded the case “for further consideration in light of these
developments.”3
On December 30, 2014, the Court of Appeals denied Plaintiffs petition for rehearing en
banc, and on October 9, 2015, the United States Supreme Court denied Plaintiffs’ petition for a
writ of certiorari. At the conclusion of appellate review, the Court ordered the parties to file all
motions and requests for relief to bring this matter to a conclusion. The Motions now before the
2

Johnson v. City of Memphis, 770 F.3d 464, 477-78 (6th Cir. 2014).

3

Id. at 485.
2

Court, and others, followed. On May 10, 2016, the Court entered an Order Granting Plaintiffs’
Motion to Dissolve the Stay of Execution and Denying Defendant’s Motion to Vacate Judgment
and Enter a New Judgment (ECF No. 684). The Court held that at this stage of the proceedings,
the City of Memphis had waived or forfeited any challenge to the Court’s earlier rulings
regarding the City’s 2000 process because Defendant had not raised those rulings as an issue on
appeal to the Sixth Circuit. Therefore, the Court concluded that Plaintiffs were entitled to have
the stay of execution on their favorable judgment as to the 2000 process dissolved and that
Defendant was not entitled to a vacation of the judgment as to the 2000 process.
II. Defendant’s Motion to Enforce Agreed Order
The Court’s May 10, 2016 order did not decide all of the parties’ requests for relief. The
Johnson I Plaintiffs’ Motion to Enforce Judgment (ECF No. 668), and the City’s Motion to
Enforce the Court’s February 14, 2007 Order (ECF No. 673) remained.4 The Court determined
that it needed additional submissions from the parties before the Court could render a final
decision on the issue of backpay and attorney’s fees. Specifically, the Court concluded that it
had to resolve how the Sixth Circuit’s appellate decision affected the Billingsley Plaintiffs
involved in the 2002 process and the relief those Plaintiffs received on a provisional basis as part
of an agreement with the City to stay enforcement of the Court’s judgment pending appeal.
As the Court explained in its previous order, Defendant’s Motion to Enforce the Court’s
February 14, 2007 Order sought specific performance of an agreement between the parties. On
February 14, 2007, the Court approved an agreed order granting a stay of execution of judgment
pending appeal (ECF No. 409). The agreed order reflected a negotiated compromise between the
City and forty-seven (47) named Plaintiffs from the consolidated cases. Under the terms of the
4

Also remaining before the Court is Plaintiffs’ Motion for Attorney’s Fees (ECF No.
671) filed on January 25, 2016. The parties are currently preparing supplemental briefs on the
fee issue.
3

order, the Court granted the 47 Plaintiffs promotion to the rank of sergeant, effective February 3,
2007, subject to the following caveat: “[i]n the event that the Court’s December 28, 2006
Memorandum Opinion and Order is reversed on appeal, Plaintiffs will be returned to the rank of
patrol officer.” The City’s Motion requests that the Court simply enforce the agreed order and
demote the officers listed in the agreed order back to the rank of patrol officer.
The Court held in its May 10, 2016 order that enforcement of the 2007 agreed order
would not be appropriate as to the 11 Johnson I Plaintiffs who were parties to the agreement.
The City’s argument to enforce the agreed order against the Johnson I Plaintiffs was without
merit because the Johnson I Plaintiffs had prevailed on their Title VII claim as to the 2000
process and the City waived on appeal any challenge to that portion of the Court’s judgment. All
of the Johnson II Plaintiffs were also named Plaintiffs in Johnson I. Even though the Johnson II
officers did not prevail on their challenge to the 2002 process, they remained entitled to the relief
granted for the Title VII violations in the 2000 process in Johnson I. Therefore, the City had not
shown why the Court should enforce the agreed order as to the 11 Johnson I Plaintiffs currently
employed with MPD and demote them back to the rank of patrol officer. The Court did decide
that additional information was needed about the Billingsley Plaintiffs, 20 in all, who were
parties to the agreed order. As such, the Court directed the City to submit more detailed
information about the affected Billingsley Plaintiffs along with an explanation of how
enforcement of the February 14, 2007 agreed would affect their status and benefits as Memphis
Police officers. The City filed the information on May 31, 2016 (ECF No. 468).
III. Plaintiffs’ Motion to Enforce Judgment
Likewise, the May 10, 2016 order did not make a final determination of Plaintiffs’
Motion to Enforce Judgment. Plaintiffs request that the Court order Defendant to deposit into

4

the registry of the Court the money judgment representing the award of backpay to twenty-three
Johnson I Plaintiffs. The total amount of the backpay award is $765,822.85. Plaintiffs further
seek an award of post-judgment interest. For cause Plaintiffs argue that under Tennessee law the
funds of the City of Memphis are exempt from legal process, subject to certain exceptions. A
court order requiring Defendant to pay the judgment into the Court’s registry will facilitate
Plaintiffs’ collection of their backpay award.

Defendant filed a response in opposition to

Plaintiffs’ Motion, arguing that Plaintiffs are not entitled to the award of backpay because the
Court of Appeals reversed the Court’s judgment as to the 2002 promotion process. The premise
of Defendant’s opposition is that the reversal of the Court’s judgment as to the 2002 promotion
process necessarily implied a reversal of the Court’s judgment as to the 2000 promotion process,
an argument the Court rejected in its May 10, 2016 order.
IV. Defendant’s Motion Seeking Clarification
Subsequent to the entry of the Court’s May 10, 2016, order, Defendant filed a Motion
Seeking Clarification of the order. According to Defendant, the Johnson I and Johnson II
Plaintiffs had interpreted the May 10, 2016 order to hold that these Plaintiffs could immediately
begin execution of the judgment and collection of backpay from Defendant. Defendant opposed
this result, arguing that such an approach would result in the piecemeal litigation of the parties’
post-remand motions.

Specifically, Defendant asserted that the Court had not yet made a

determination about what backpay, if any, the Billingsley and Johnson II Plaintiffs might receive.
The Court’s May 10, 2016 order directed the City to provide the Court with additional
information about the Billingsley Plaintiffs who were parties to the February 14, 2007 agreed
order. The City further argues that the original award of backpay to the Johnson II Plaintiffs is
excessive.

The Johnson II Plaintiffs did not pass the 2002 promotions test and were not

5

promoted to the rank of sergeant until February 14, 2007. As a result, Judge Donald awarded the
Johnson II Plaintiffs backpay retroactive to July 11, 2000, the date on which the Johnson II
Plaintiffs were first denied promotion. Defendant argues then that the Johnson II Plaintiffs will
receive a windfall recovery of backpay and should only be entitled to backpay from January 10,
2003, the effective date of promotion for the Johnson I Plaintiffs. Until the Court enters a final,
post-remand judgment in this case, Defendant opposes any attempt by Plaintiffs to enforce the
pre-remand judgment, including the award of backpay.
Plaintiffs responded in opposition to Defendant’s Motion Seeking Clarification.
Plaintiffs argue that the May 10, 2016 order needs no clarification. The Court granted Plaintiffs’
motion to lift the stay of execution and denied Defendant’s motion for entry of a new judgment.
Defendant has not shown why Plaintiffs should not be allowed to execute on the award of
backpay.

Plaintiffs contend that Defendant’s Motion is merely an attempt to seek

reconsideration of the Court’s May 10, 2016 order. Plaintiffs further argue that Defendant has
not shown why the Court should reduce the award of backpay for the Johnson II Plaintiffs who
remain entitled to relief because they were among the Johnson I Plaintiffs as well and prevailed
on their Title VII claims as to the 2000 process. Therefore, the Court should deny the City’s
Motion.
V. Settlement in Billingsley
On July 5, 2016, the parties in Billinglsey reported to the Court that they had reached a
settlement of all remaining issues in that case and that counsel would submit a joint motion to
approve the parties’ settlement. On August 2, 2016, the parties filed a joint motion to approve
the settlement (ECF No. 214, no. 04-2013-STA-tmp). As part of the settlement, the parties
agreed that the Billingsley Plaintiffs waived “any claim for backpay and attorney’s fees,

6

including those attorney’s fees awarded as sanctions against Defendant, and that this case be
dismissed with prejudice with no costs assessed.” The Court granted the parties’ joint motion to
approve the settlement on August 4, 2016, and entered judgment in Billingsley on August 8,
2016.
ANALYSIS
The Court finds that the parties’ Motions are now ripe for determination, particularly in
light of the parties’ settlement of the Billingsley case. The Court hereby rules as follows.
I. Defendant’s Motion to Enforce Agreed Order
Defendant’s Motion to Enforce Agreed Order is due to be denied. The Court had already
denied Defendant’s Motion as to the officers who were parties to the February 14, 2007, agreed
order and named as Plaintiffs in Johnson I. In its May 10, 2016 order, the Court held that
“enforcement of the agreed order would not be appropriate as to the 11 Johnson I Plaintiffs
named as parties to the agreement.” This left only the City’s request to enforce the agreed order
against the 20 Billingsley Plaintiffs who were also parties to the agreement. The parties have
since reached a settlement of the Billingsley claims and filed a joint motion to approve the
settlement, which the Court granted. Therefore, Defendant’s Motion to Enforce Agreed Order is
now moot and will therefore be DENIED.
II. Defendant’s Motion Seeking Clarification
Defendant’s Motion Seeking Clarification is likewise moot, at least in part, and otherwise
without merit. To the extent that Defendant seeks clarification about the Court’s determination
of the backpay to which the Billingley Plaintiffs might be entitled, the parties’ settlement in
Billingsley makes Defendant’s Motion a dead letter. As for Defendant’s objection to piecemeal
litigation, the Court’s May 10, 2016 order speaks for itself. As Plaintiffs correctly point out, the

7

Court granted Plaintiffs’ motion to lift the stay of execution on the judgment in their favor in
Johnson I. The Court’s ruling was quite plain in this regard. The Johnson I Plaintiffs continued
to be the prevailing parties on their Title VII claims, even after the Sixth Circuit reversed the
judgment in favor of the Billingsley and Johnson II Plaintiffs with respect to the 2002 process.
Defendant’s decision to waive any challenge on appeal to the judgment against it as to the 2000
process is now the law of the case.
For similar reasons, Defendant’s attempt to argue for a recalculation of the backpay
awarded to Johnson II Plaintiffs is not well-taken. Judge Donald’s Memorandum Opinion and
Order on Remedies awarded backpay to all Plaintiffs, including the Johnson II Plaintiffs,
“commensurate with their having assumed the sergeant rank on the date of their first denial of
promotion under either the 2000 or 2002 process.”5 As the Court carefully explained in its May
10, 2016 order, the City’s attempt to relitigate issues on remand, after having waived review of
them on appeal, runs afoul of the law of the case doctrine. Therefore, to the extent that
Defendant uses the Motion Seeking Clarification to relitigate this settled issue, the Motion is
DENIED.
III. Plaintiff’s Motion to Enforce Judgment
This leaves Plaintiffs’ Motion to Enforce Judgment. Plaintiffs have requested that the
Court intervene pursuant to Federal Rule of Civil Procedure 69(a) and order the City to deposit
into the registry of the Court the amount of $765,822.85 plus post-judgment interest,
representing the total backpay awarded to twenty-three Johnson I Plaintiffs. Plaintiffs explain
that this procedure will achieve administrative convenience and expedite collection of the
judgment. As Plaintiffs point out in their memorandum, Defendant stated in its original motion
to stay execution that the Court should not require a supersedeas bond because the “judgment, if
5

Mem. Op. & Order on Remedies 37, Dec. 28, 2006 (ECF No. 388).
8

affirmed, would promptly be satisfied, and collection of the judgment from Defendant will not be
complex.”6

In response to Plaintiff’s Motion to Enforce Judgment, Defendant argues that

Plaintiffs are entitled to no relief at all, including backpay. Other than to deny that Plaintiffs
should receive backpay, Defendant has not addressed Plaintiff’s request to deposit the backpay
previously awarded into the registry of the Court.
Rule 69(a)(1) of the Federal Rules of Civil Procedure states that “[a] money judgment is
enforced by a writ of execution, unless the court directs otherwise” and specifies that “[t]he
procedure on execution—and in proceedings supplementary to and in aid of judgment or
execution—must accord with the procedure of the state where the court is located” unless an
applicable “federal statute governs.”7 “[T]he overall intent of Rule 69(a) is to limit both the
procedure for obtaining process and the effect of writs to that available under state law.”8
Consistent with Rule 69(a)’s intent that writs of execution under state law govern the execution
of a judgment, several circuit courts of appeal have concluded that the clause “unless the court
directs otherwise” should be “read narrowly.”9 “[T]he legislative history and judicial application
of Rule 69(a) make clear that the first sentence of [Rule 69(a)] expresses a limitation on the
means of enforcement of money judgments and does not create a general power to issue writs of

6

Def.’s Mot. for Stay of Execution of J. 4, Apr. 2, 2013 (ECF No. 639-1, Page ID 5548).

7

Fed. R. Civ. P. 69(a)(1); Apostolic Pentecostal Church v. Colbert, 169 F.3d 409, 414
(6th Cir. 1999).
8

Gabovitch v. Lundy, 584 F.2d 559, 561 (1st Cir. 1978).

9

Andrews v. Roadway Exp. Inc., 473 F.3d 565, 568 (5th Cir. 2006); Aetna Cas. & Sur.
Co. v. Markarian, 114 F.3d 346, 349 (1st Cir.1997); Combs v. Ryan’s Coal Co., Inc., 785 F.2d
970, 980 (11th Cir. 1986) (citing 7 J. Moore, Moore’s Federal Practice ¶ 69.02[2] at 69–10 to –
10.1 (2d ed. 1985)); Shuffler v. Heritage Bank, 720 F.2d 1141, 1148 (9th Cir. 1983) (“[W]e do
not interpret the exception to execution to permit a federal court to ‘enforce a money judgment
by . . . methods other than a writ of execution, except in cases where established principles so
warrant.’ ”) (quotation omitted).
9

execution in disregard of the state law incorporated by the rest of the Rule.”10 The Ninth Circuit
has specifically concluded that district courts lack the inherent authority or equitable power
under Rule 69(a) to order a judgment-debtor to pay funds into a court’s registry.11
Applying these principles to the issue presented in this case, the Court holds that
Plaintiff’s request to compel Defendant to deposit the packpay award into the Court’s registry is
beyond the scope of the Court’s authority. Rule 69(a)(1) is clear that state law governs the
execution of a judgment and circumscribes the Court’s power to order other means of execution.
This means that Tennessee law on writs of execution applies in this case unless Plaintiff can
demonstrate otherwise. As Plaintiffs concede in their Motion, Defendant’s property, including
monetary deposits and funds in its possession, is exempt from legal process. Tenn. Code Ann.
§6-54-115 provides that “[t]he public property of every municipality, of every character and
description, used for strictly municipal purposes, is exempt from seizure by attachment,
execution or other legal process; nor shall municipal funds in the hands of its treasurer or
depository be subject to garnishment or other legal process, except as is elsewhere provided.”12
Plaintiffs’ request to circumvent Tennessee law and require Defendant to deposit the backpay
award into the Court’s registry runs against Rule 69(a)(1)’s design and intent to follow strictly
state law on the execution of a judgment. And as the Ninth Circuit has concluded, Rule 69(a)(1)
does not grant a court authority to order such extraordinary relief. Therefore, Plaintiffs’ Motion
to Enforce Judgment must be DENIED.

10

Gabovitch, 584 F.2d at 560–61.

11

Hilao v. Estate of Marcos, 95 F.3d 848, 851 (9th Cir. 1996).

12

Tenn. Code Ann. § 6-54-115.
10

CONCLUSION
Defendant’s Motion to Enforce Agreed Order and Motion Seeking Clarification are
DENIED. Plaintiffs’ Motion to Enforce Judgment is also DENIED. The Court will finally
decide the issue of attorney’s fees once the parties have completed their supplemental briefing on
that issue.
IT IS SO ORDERED.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: August 24, 2016.

11