author: SCHROEDER, Circuit Judge:

text:
    Ever QUINTANILLA, Plaintiff-Appellant, v. CITY OF DOWNEY; Clayton Mays; R.R. Wells; Officer Biarnesen, in his personal and official capacity; J. Hoekter, in his personal and official capacity, Defendants-Appellees.
    No. 94-56550.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Dec. 11, 1995.
    Decided May 22, 1996.
    Donald W. Cook and Robert Mann, Los Angeles, California, for plaintiff-appellant.
    John C. Burton, Pasadena, California, for plaintiff-appellant.
    S.Frank Harrell, Franseell, Strickland, Roberts & Lawrence, Santa Ana, California, for defendants-appellees.

      Before: SCHROEDER and O’SCANNLAIN, Circuit Judges, and BURNS, District Judge.

       Honorable James M. Bums, Senior United States District Judge for the District of Oregon, sitting by designation.

   ORDER

SCHROEDER, Circuit Judge:

Plaintiff Ever Quintanilla appeals from a judgment entered after a jury verdict against him in his 42 U.S.C. § 1983 suit against the city of Downey, its police chief, and three individual officers. The suit alleged that the use of a police dog to search and detain Quintanilla during his arrest violated his rights under the Fourth Amendment. Plaintiff challenges the district court’s denial of his motion for a directed verdict on the issue of deadly force, its denial of his motion for a new trial because of allegedly erroneous evi-dentiary rulings and jury instructions, and its entry of judgment for the police chief and the city on the basis of jury findings that the individual police officers did not violate Quin-tanilla’s constitutional rights. We affirm.

BACKGROUND

Shortly after midnight on July 27, 1991, the city of Downey’s police dispatcher radioed a report that a Ford Bronco had been stolen. One officer spotted the Bronco, driven by Quintanilla, and began a high speed chase through various residential areas. The auto chase ended in a dead-end cul-de-sac, where Quintanilla got out, threw an empty vodka bottle at the officer, sealed a barbed-wire fence, and vanished into a poorly lit truck-yard.

Other line officers, including defendant Randy Wells, arrived at the cul-de-sac and picked up the pursuit using a trained, German Shepard police dog. Wells announced that if Quintanilla did not surrender voluntarily, a canine unit would be released to find him. After receiving no response, Wells released the dog, which almost immediately found Quintanilla hiding between two trucks, beyond the officers’ reach. The dog bit Quintanilla’s arms and legs. The officers heard the scuffling, ran to the scene, and observed Quintanilla in control of the dog, holding it in a head-lock. Wells repeatedly ordered Quintanilla to release the dog and surrender, but he refused. Wells then entered the area between the trucks, dragged Quintanilla out into an open area, where the other officers handcuffed him, and ordered the dog away. The dog immediately complied. The scuffle with the dog lasted approximately one minute. Quintanilla required medical treatment but suffered no serious injuries.

Quintanilla sued Wells and the two assisting line officers, Keith Biarnesen and John Hoekter, on various federal and state grounds, including the asserted use of excessive force through the deployment of a police dog in violation of Quintanilla’s right to be free from unreasonable searches and seizures under the Fourth Amendment. Quintanilla also sued the city of Downey and its Police Chief, Clayton Mayes, alleging their maintenance of an unconstitutional custom or policy involving police dogs. See Monell v. Dep’t of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Prior to trial, the district court, over Quin-tanilla’s opposition, bifurcated the claims against the three individual line officers and the Police Chief and city, so that the first phase of the trial would address the excessive force claim against the individual officers, and the second phase the Monell claim against the Chief and city. The court, relying upon City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 1573, 89 L.Ed.2d 806 (1986), ruled that if the jury found that the three line officers committed no constitutional transgressions when they used the dog to arrest Quintanilla, then the city and Chief would be absolved, as a matter of law, from any liability under Monell. The court thus required plaintiff to show during the first phase that the use of the police dog on this occasion led to a constitutional deprivation. Accordingly, in a pre-trial ruling, the court excluded from the first phase any evidence of police dog use in other situations. Plaintiff offered such evidence to prove the existence, under Monell, of an unconstitutional policy. This evidence included graphic photographs, from unrelated cases, of police dog bite victims; medical summaries, prepared for an unrelated case, of persons bitten by police dogs; a videotape of a police dog attack in a different case, and a police dog training videotape.

Plaintiff, in an attempt to circumvent the district court’s bifurcation and evidentiary rulings, voluntarily dismissed the three individual officers so that he could offer evidence of the policy during the first phase. The district court rejected the offer as an attempt to influence the jury with other incidents, and admitted only evidence relevant to the issue of the individual officers’ liability in Quintanilla’s case. In doing so, the court excluded testimony from Mr. VanNess Bo-gardus, a police practices expert, and Dr. Peter Meade, a medical expert. At the close of evidence, the court denied plaintiffs motion for a directed verdict. The jury then returned a special verdict finding that the individual officers had not used excessive force in violation of plaintiffs Fourth Amendment rights. Accordingly, the court entered judgment for the Chief and city on the grounds that Monell liability may not arise absent a constitutional violation of the plaintiffs rights. It then denied plaintiffs motions for judgment as a matter of law and for a new trial. Plaintiff timely appealed.

On appeal, Quintanilla argues that the district court erred in 1) entering judgment on the Monell claim for the Chief and city solely on the basis of the jury’s finding that the individual officers did not violate plaintiffs constitutional rights; 2) denying his motion for a new trial based on the exclusion of the photographs, medical summaries, videotapes, and expert testimony; 3) denying his motion for a new trial based on the failure to give instructions relating to the use of deadly force; and 4) denying his related motion for directed verdict on the issue of deadly force.

DISCUSSION

The Monell Claim

Underlying this entire appeal is plaintiffs position that he should not have been required to show that the individual police officers violated his constitutional rights before proceeding on the theory that the Chief and city maintained a policy that resulted in the constitutional violation of other individuals’ rights. The dispositive authority is City of Los Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986)(per curiam). The Supreme Court there held that a public entity is not liable for § 1983 damages under a policy that can cause constitutional deprivations, when the factfinder concludes that an individual officer, acting pursuant to the policy, inflicted no constitutional harm to the plaintiff. Id. at 799, 106 S.Ct. at 1573; see also Palmerin v. City of Riverside, 794 F.2d 1409, 1414-15 (9th Cir.1986). In so holding, the Court said:

[i]f a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.

475 U.S. at 799, 106 S.Ct. at 1573 (emphasis in original). Thus, an individual may recover under § 1983 only when his federal rights have been violated.

Plaintiff cites Chew v. Gates, 27 F.3d 1432, 1438, 1445 (9th Cir.1994), cert. denied, — U.S.-, 115 S.Ct. 1097, 130 L.Ed.2d 1065 (1995), and Hopkins v. Andaya, 958 F.2d 881, 888 (9th Cir.1992), for the proposition that a police department may be liable under § 1983 for damages caused by unconstitutional policies notwithstanding the exoneration of the individual officer whose actions were the immediate cause of the constitutional injury. While this may be true if the plaintiff established that he suffered a constitutional injury, and the officer’s exoneration resulted from qualified immunity, see Palmerin, 794 F.2d at 1414-15, this proposition has no applicability here. Plaintiff failed to establish that he suffered a constitutional injury-

In the instant ease, plaintiff’s strategy was to convince the jury to award him damages on the strength of evidence concerning police dog attacks on others. The district court, under Fed.R.Civ.P. 42(b), in the interest not only of convenience and judicial economy but also the avoidance of potential prejudice and confusion, bifurcated the trial of the individual police officers from the Chief and city. See Larez v. City of Los Angeles, 946 F.2d 630, 635, 640 (9th Cir.1991). The bifurcation enabled the court to separate the questions regarding the constitutionality of the three officers’ actions from the questions regarding the Chief and city’s liability under Monell. Plaintiff was not entitled to circumvent the bifurcation and evidentiary rulings by voluntarily dismissing the three individual officers and proceeding to demonstrate the existence of a policy using evidence of attacks more severe than his own. Under Heller and general principles of § 1983 liability, an individual may recover only when that individual’s federal rights have been violated. The district court correctly entered judgment for the Chief and city based on the jury’s special verdict that plaintiffs rights were not violated.

Evidentiary Rulings

Because of the bifurcation order, the court, in a pre-trial ruling, excluded from the first phase of the trial evidence submitted for the purpose of demonstrating the existence of an unconstitutional policy. This evidence included summaries of medical treatment rendered to persons bitten by police dogs, and prepared for an unrelated case; photographs of injuries inflicted by police dogs in unrelated incidents; a police dog training videotape; and a videotape of an arrestee being attacked by a police dog. During trial, the court also excluded testimony from medical expert Dr. Peter Meade about the nature and severity of injuries resulting from police dog attacks, the likelihood of infection, hospitalization rates, and the potential for death; and expert testimony from Mr. VanNess Bogardus, a police dog trainer and handler, about the training of police dogs and the severity of injuries caused by police dogs.

Quintanilla argues that the district court abused its discretion when it excluded this body of evidence. He is incorrect. At issue during trial, was whether the individual officers’ use of the police dog in this particular ease was unconstitutional. Had counsel offered the evidence with instructions limiting its relevance to this issue, it may well have been admissible to demonstrate the dog’s capacity for causing serious injury. See Chew, 27 F.3d at 1453-55 (Norris, J., concurring in part and dissenting in part) (dog’s capacity for causing serious bodily injury is relevant to whether it constitutes deadly force); United States v. Moore, 846 F.2d 1168, 1166-67 (8th Cir.1988) (expert testimony regarding the types of infections that can result from a human bite is relevant to whether defendant used his mouth and teeth as a deadly weapon). However, counsel offered the evidence to show that the Chief and city’s policy of using police dogs, rather than the individual officers’ use of this particular police dog, was unconstitutional. As such, the evidence was premature. The Chief and city’s liability under Monell was not yet at issue. Admitting evidence pertaining to the Monell issue could well have unfairly prejudiced the Chief and city and confused the jury as it considered the individual officers’ actions.

In addition, the relevance of the training videotape is questionable because it showed dogs that were trained to bite and hold the arm; whereas the dog in this case was not so trained. Moreover, the numerous photographs of the dog bite victims and the videotape of the attack were unusually graphic and probably unfairly prejudicial. The district court acted well within its discretion in excluding the contested evidence.

Excessive Force

Quintanilla’s remaining challenges rest on Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), where the Supreme Court delineated the conditions in which police officers may use deadly force to affect an arrest. He argues that he deserves a new trial because the district court erroneously failed to give deadly force instructions based on Gamer. In a related argument, he contends that he is entitled to a directed verdict because the use of the police dog during his arrest violated the deadly force rule in Gamer. Defendants argue that the test in Gamer was subsumed into the excessive force rule set out in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), and is not a separate test. They maintain that the district court properly instructed on excessive force, and correctly denied the directed verdict.

In Garner, a police officer investigating a nighttime burglary shot to death an unarmed, fifteen-year old suspect in order to prevent him from escaping over a fence. The Court first held that “apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” 471 U.S. at 7, 105 S.Ct. at 1699. It then observed that the reasonableness of the seizure turned on a balancing of the nature and quality of the intrusion against the countervailing governmental interests at stake. Id. at 8, 105 S.Ct. at 1699. After conducting this balancing analysis, the Court concluded that the use of deadly force is reasonable only if: 1) it is necessary to prevent escape; 2) the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to him or to others; and 3) if feasible, the officer has given some warning. Id. at 3, 11, 105 S.Ct. at 1696, 1701. The Court held that the officer’s actions violated the Fourth Amendment.

Four years later, in Graham, the Supreme Court extended the Fourth Amendment balancing analysis to cases involving non-deadly force.

Today we make explicit what was implicit in Gamer’s analysis, and hold that all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard ...

490 U.S. at 395, 109 S.Ct. at 1871 (emphasis in original). In so holding, the Court set forth a list of factors to be considered in determining whether the force used was excessive. The Court stated that the nature of the force used by the law enforcement officer should be considered in light of the totality of the circumstances, including: 1) the severity of the crime at issue; 2) whether the suspect poses an immediate threat to the safety of the officers or others; and 3) whether the suspect actively resists arrest or attempts to evade arrest by flight. Id. at 396, 109 S.Ct. at 1872. Gamer and Graham set forth somewhat different standards for proving a Fourth Amendment excessive force violation. See Fikes v. Cleghorn, 47 F.3d 1011, 1014 n. 2 (9th Cir.1995); Chew, 27 F.3d at 1442; Ting v. United States, 927 F.2d 1504, 1509-10 (9th Cir.1991). The Gamer standard, if not subsumed into the more general Graham formula, however, can apply only when deadly force has been used. Deadly force has been described as “force that creates a substantial risk of causing death or serious bodily harm.” Fikes, 47 F.3d at 1014; Chew, 27 F.3d at 1453 (Norris, J., concurring in part and dissenting in part). We first consider whether the jury could have rationally concluded deadly force was used in this case.

Two recent decisions in this circuit have explored the meaning of deadly force in relation to police dogs. In Chew, this court reversed a summary judgment for the Los Angeles Police Department, finding that the plaintiff had raised a genuine issue of fact as to whether the use of a police dog during his arrest constituted excessive force in violation of the Fourth Amendment. Judges Reinhardt and Norris formed a majority in reaching this result, but did so for different reasons. Judge Reinhardt concentrated on whether the dog attack was excessive under Chew, 27 F.3d at 1440, in holding that there was a triable issue. Judge Norris concurred, but concentrated instead on the test for deadly force under Gamer. Id. at 1452. He said that the victim’s severe lacerations and nearly severed arm, and the testimony that the dog, as trained and deployed, could cause serious and sometimes fatal injuries was sufficient to raise a genuine issue of fact as to the use of deadly force. Id. at 1453-55; see also, Moore, 846 F.2d at 1166 (what constitutes a deadly weapon depends not on the nature of the object itself but on its capacity, given the manner of its use, to endanger life or inflict great bodily harm).

In Fikes, the plaintiff offered evidence of superficial bites on his arm and shoulder. 47 F.3d at 1014-15. Moreover, the dog was trained to release arrestees on command and it did in fact release Fikes on command. Id. We held that this evidence did not support a jury instruction on deadly force. Id.

Quintanilla asserts, on the basis of the evidence admitted at his trial, that the district court erroneously failed to give deadly force instructions based on Gamer. His assertion is unfounded. The instant ease is, on the facts, indistinguishable from Fikes. Quintanilla suffered only non-life threatening injuries that did not require serious medical attention. Moreover, the dog was trained to release on command, and it did in fact release Quintanilla on command. In light of these facts, and the absence of admissible evidence regarding this particular dog’s capacity for harm, the district court correctly refused to give deadly force instructions.

Quintanilla’s corollary argument is that the district court erroneously denied his motion for a directed verdict because the use of the police dog violated Gamer’s deadly force rule. This contention is similarly without merit. From our conclusion that the evidentiary record did not support a deadly force instruction, it must follow that a jury could reasonably find that the use of the police dog here did not create a “substantial risk of causing death or serious bodily harm.” See Fikes, 47 F.3d at 1014. The district court, therefore, properly denied Quintanilla’s motion for directed verdict.

AFFIRMED.

      . Plaintiff also argues that the district court erroneously refused to instruct the jury with regards to self-defense. We summarily dispose of this contention because it has no basis in the law, and is therefore without merit.


source: Caselaw Access Project

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William WUNSCH; Beverly Wunsch; Teri Lee Sowers, Defendants, and Frank L. Swan, Respondent-Appellant.
    No. 93-50671.
    United States Court of Appeals, Ninth Circuit.
    May 23, 1996.
    Before: BROWNING, FARRIS and LEAVY, Circuit Judges.
   ORDER

The opinion filed April 28, 1995, and published at 54 F.3d 579, is withdrawn.


author: WILLIAM A. NORRIS, Circuit Judge:

text:
    UNITED STATES of America, ex rel. William DEVLIN; Stanley H. Sidicane; Rod Kodman, Plaintiffs-Appellants, v. STATE OF CALIFORNIA; County of Mariposa; and Tom Archer, Defendants-Appellees.
    No. 93-16729.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 15, 1995.
    Decided May 24, 1996.

      William Devlin, Fresno, California; Stanley H. Sidicane, Opelika, Alabama; Rod Kod-man, Merced, California, in pro per for plaintiffs-appellants.
    Steven Wayne Dahlem, Mariposa, California; Theodore Garelis, Deputy Attorney General, Sacramento, California, for defendants-appellees.
    Before NORRIS, WIGGINS, and FERNANDEZ, Circuit Judges.
   OPINION

WILLIAM A. NORRIS, Circuit Judge:

This is a qui tam action filed under the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-3733 (1988), based upon allegations that the Social Services Department of Mari-posa County (“SSD”) has defrauded the United States government by inflating client statistics, in order to qualify for increased federal funding under various federal programs. The district court dismissed the action for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) on the ground that the relators were not an “original source” of the information on which the allegations of fraud were based as required by § 3730(e)(4) of the FCA. We affirm.

I

The facts relevant to the original source issue are not in dispute: During the week of January 13, 1992, relators Rod Kodman and William Devlin were informed of the alleged fraud by William Cotey, an SSD employee who had participated in the fraud by falsifying records. Shortly thereafter, relator Dev-lin, Cotey, and Cotey’s wife met with Jerry Rankin, a Mariposa Gazette reporter, and told him about the alleged fraud. On February 6, 1992, the Mariposa Gazette published an article by Rankin describing SSD’s allegedly fraudulent conduct. Five days after Rankin’s article appeared, the relators filed this qui tam action.

Because the action was filed after the Mariposa Gazette publicly disclosed the allegations of fraud, the district court lacked subject matter jurisdiction unless the relators were an “original source” of the information upon which the allegations were based. 31 U.S.C. § 3730(e)(4)(A); United States ex rel. Fine v. Chevron, 72 F.3d 740, 743 (9th Cir.1995) (en banc). The district court held that the relators were not an original source because their knowledge of the fraud allegedly perpetrated by SSD was not “direct and independent” within the meaning of § 3730(e)(4).

II

Only two Ninth Circuit cases address the question of what constitutes “direct and independent” knowledge for purposes of § 3730(e)(4). In both cases, we held that the relator had “direct and independent” knowledge because he had discovered the information underlying his allegations of wrongdoing through his own labor. In Wang v. FMC Corp., 975 F.2d 1412 (9th Cir.1992), we held that an engineer-relator who had been called in to study a problem with a product had “direct and independent” knowledge of the problem because “he saw [it] with his own eyes” and his knowledge was “unmediated by anything but [his] own labor.” Id. at 1417. Similarly, we held in United States ex rel. Barajas v. Northrop Corp., 5 F.3d 407 (9th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1543, 128 L.Ed.2d 195 (1994), that an employee of a government subcontractor who brought a qui tam action alleging falsified testing had “direct and independent knowledge” of the allegations because “he acquired [his knowledge] during the course of his employment [by the subcontractor].” Id. at 411.

In this case, the relators’ knowledge was not direct and independent because they did not discover firsthand the information underlying their allegations of fraud. They did not see the fraud with their own eyes or obtain their knowledge of it through their own labor unmediated by anything else, but derived it secondhand from Cotey, who had firsthand knowledge of the alleged fraud as a result of his employment at SSD.

The relators argue that their knowledge of the alleged fraud was direct because of relator Devlin’s personal efforts to verify the accuracy of the information the relators obtained from Cotey. It is true that Devlin contacted persons who told him that they did not receive services for which SSD allegedly billed the government. The question, however, is whether the verification Devlin obtained from these persons added anything of significance to the information the relators obtained from Cotey. We do not believe it did. The information Cotey disclosed to the relators is that SSD had fraudulently billed the government for services to persons who had not received the services, together with a description of those services and a list of the names of the persons SSD claimed to have received the services. Armed with all that information, anyone could easily have done what Devlin did: contact persons on Cotey’s list and ask them whether they had in fact received the services that had been described by Cotey. That is all Devlin did, and it is a virtual certainty that federal investigators would have done precisely the same thing once the information provided by Cotey had been made public. Viewed in this light, the knowledge Devlin obtained did not make a genuinely valuable contribution to the exposure of the alleged fraud.

The facts of this case thus differ materially from the facts in United States ex rel. Springfield Terminal Ry. v. Quinn, 14 F.3d 645 (D.C.Cir.1994), where the relator’s own personal knowledge was essential to his conclusion that a fraud had been committed. Id. at 656-57 (employer-relator had direct and independent knowledge that a labor arbitrator had fraudulently billed the government for services not actually rendered because the relator’s personal knowledge of the arbitration process and his interviews with the persons with whom the arbitrator had allegedly worked were essential to the conclusion that a fraud had been committed).

Our holding is in keeping with the purpose of the FCA, which aims at ferreting out fraud by encouraging persons with firsthand knowledge of alleged- wrongdoing to come forward. It is “the cooperation of individuals who are either dose observers or otherwise involved in the fraudulent activity” that Congress sought to enlist through the qui tarn provisions of the FCA. S.Rep. No. 345, 99th Cong., 2d Sess. 4, reprinted in 1986 U.S.C.C.A.N., 5269 (emphasis added); see also United States ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v. Prudential Ins. Co., 944 F.2d 1149, 1154 (3d Cir.1991) (FCA seeks to “encourage persons with firsthand knowledge of fraudulent misconduct” to come forward) (emphasis added). Conversely, the original source requirements of' § 3730(e)(4) are intended to bar parasitic suits through which a plaintiff seeks a reward even though he has contributed nothing significant to the exposure of the fraud. As our court and others have explained, the 1986 amendments to the FCA steer a course between an overly restrictive interpretation of the FCA on the one hand, as exemplified by United States ex rel. Wisconsin v. Dean, 729 F.2d 1100 (7th Cir.1984) (barring jurisdiction whenever the Government possessed the information on which the claim was brought, even if it was the relator who had provided the government with the information), and an unrestrained permissiveness on the other, as exemplified by United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943) (allowing qui tam actions based solely on information already publicly disclosed). In other words, the FCA has been shaped by Congress’s “[s]eeking the golden mean between adequate incentives for whistle-blowing insiders with genuinely valuable information and discouragement of opportunistic plaintiffs who have no significant information to contribute of their own.” Springfield Terminal Ry., 14 F.3d at 649; see also Wang, 975 F.2d at 1418-19, Stinson, 944 F.2d at 1154.

In holding as we do, we join the three other circuits that have considered this question, all of which have also decided that a person who learns secondhand of allegations of fraud does not have “direct” knowledge within the meaning of 31 U.S.C. § 3730(e)(4)(B). See United States ex rel. Barth v. Ridgedale Elec., Inc., 44 F.3d 699, 703 (8th Cir.1995) (“a person who obtains secondhand information from an individual who has direct knowledge of the alleged fraud does not himself possess direct knowledge and therefore is not an original source under the [FCA]”); United States ex rel. Kreindler & Kreindler v. United Technologies Corp., 985 F.2d 1148, 1159 (2d Cir.) (attorney-relator who obtains information of alleged wrongdoing through disclosures made by alleged wrongdoer in discovery in a previous lawsuit does not have significant direct and independent knowledge; neither the collateral research and investigations conducted by the attorney nor his background knowledge that enabled him to understand the significance of the disclosures were enough to establish that he had direct and independent knowledge), cert. denied, 508 U.S. 973, 113 S.Ct. 2962, 125 L.Ed.2d 663 (1993); Stinson, 944 F.2d at 1161 (“nothing ... would bar suit by someone who learned of the fraud from an insider, if the information had not yet been publicly disclosed”) (emphasis added). But see id. at 1173 (Scirica, J., dissenting) (“If Congress had intended to bar all “second-hand” relators, it could have done so explicitly, without predicating the bar on public disclosure.”).

The judgment of the district court dismissing the relators’ complaint for lack of subject matter jurisdiction is AFFIRMED.

      . Section 3730(e)(4) of the FCA provides:
      (A) No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions ... from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.
      (B) For purposes of this paragraph, "original source" means an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information.
      31 U.S.C. § 3730(e)(4).

      . The exception to § 3730(e)(4)(A)'s bar against suits based on publicly disclosed allegations for suits brought by the Attorney General is plainly inapplicable.

      . To be an "original source,” a relator must show that he or she has "direct and independent knowledge of the information on which the allegations are based,” 31 U.S.C. § 3730(e)(4)(B), "voluntarily provided the information to the Government before filing” his or her qui tam action, id., and “had a hand in the public disclosure of allegations that are a part of [his or her] suit,” Wang v. FMC Corp., 975 F.2d 1412, 1418 (9th Cir.1992). It is undisputed that the relators have satisfied the latter two requirements.

      . A panel of this court reached a similar result in United States ex rel. Fine v. Chevron, 39 F.3d 957 (9th Cir.1994), holding that an auditor-relator had "direct and independent” knowledge of the information underlying his qui tam action because his “own labor" — -reviewing audit sheets and other financial records — led to his discovery of the allegedly fraudulent payments. Id. at 961-62. The panel opinion was vacated by the en banc court that reheard the case. Fine, 72 F.3d at 741 n. 1. The en banc court did not reach the question of whether Fine’s knowledge was direct and independent because it held that Fine failed the "voluntary” prong of the original source test. Id. at 743.
      Other circuits have likewise held that knowledge is "direct" when it derives from information obtained firsthand through the relator’s own labor. Cooper ex rel. United States v. Blue Cross & Blue Shield of Florida, Inc., 19 F.3d 562, 568 (11th Cir.1994) (per curiam) (relator’s knowledge of an alleged fraud by a Medicare secondary payer is direct because it was acquired through "three years of [the relator’s] own claims processing, research, and correspondence with members of Congress and [the Health Care Financing Administration]”); Houck ex rel. United States v. Folding Carton Admin., 881 F.2d 494, 505 (7th Cir.1989) (attorney-relator had direct knowledge of alleged fraudulent distribution of settlement because .his knowledge resulted from his involvement in assisting late class action claimants in recovering money out of settlement order funds), cert. denied, 494 U.S. 1026, 110 S.Ct. 1471, 108 L.Ed.2d 609 (1990); see also United States ex rel. Springfield Terminal Ry. v. Quinn, 14 F.3d 645, 656 (D.C.Cir.1994) (defining “direct” for puiposes of § 3730(e)(4) as "marked by absence of an intervening agency”); United States ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v. Prudential Ins. Co., 944 F.2d 1149, 1160 (3d. Cir.1991) (defining "direct” for purposes of § 3730(e)(4) as "marked by absence of an intervening agency, instrumentality, or influence” and holding that attorney-relator did not have direct knowledge because his information of the alleged wrongdoing, obtained through a memorandum produced in discovery in a prior lawsuit, came through two intermediaries: the company employee who was responsible for the memorandum and the discovery process).

      . The relators argue that they had direct and independent knowledge of the information upon which the allegations were based because they had evidence of the fraud prior to the public disclosure of the allegations. Relator Devlin interviewed Cotey about the fraud during the week of January 13, 1992, that is, at least two weeks before the Mariposa Gazette article describing the fraud appeared. Relator Kodman also received on January 21, 1992, 15 days before the article appeared, a letter from Cotey outlining the fraud and providing him with ledger cards and sheets documenting the allegedly fraudulent work. The fact that the relators had evidence of the fraud prior to the public disclosure of the allegations establishes that their knowledge was "independent.” See Wang, 975 F.2d at 1417. Implicit in the relators’ argument, therefore, is the contention that a showing that knowledge is "independent” is sufficient to satisfy § 3730(e)(4)’s requirement that an "original source” have “direct and independent” knowledge. The statute, however, is clear that an "original source” must have knowledge that is both direct and independent. See 31 U.S.C. § 3730(e)(4)(B) ("original source” means an individual who has direct and independent knowledge) (emphasis added); United States ex rel. Barth v. Ridgedale Elec., Inc., 44 F.3d 699, 703 (8th Cir.1995) (§ 3730(e)(4)(B) imposes a conjunctive requirement of both independent and direct knowledge); Springfield Terminal Ry., 14 F.3d at 656 (same); Stinson, 944 F.2d at 1160 (same). But see Stinson, 944 F.2d at 1172-74 (Scirica, J., dissenting) (arguing that Congress did not intend the word “direct” to constitute a separate jurisdictional bar).

      . We do not intend to suggest that the relators in this case were opportunistic. We recognize that they had a hand in the public disclosure of the alleged fraud through - their participation in the meeting with the Mariposa Gazette reporter. Congress, however, has placed an obstacle in their path to the courthouse door: the “original source" requirements established by § 3730(e)(4).


author: BRIGHT, Circuit Judge.

text:
    James Christopher DAHL, Plaintiff-Appellant, and Ronald L. Shugart, Plaintiff, v. CITY OF HUNTINGTON BEACH; Ron Lowenberg, Chief of Police; Charles Conlosh, Officer individually and as an Officer of the Huntington Beach Police Department; John Cottriel, Officer individually and as an Officer of the Huntington Beach Police Department; E. Krause, individually and as an Officer of the Huntington Beach Police Department; Officer Rand, individually and as an Officer of the Huntington Beach Police Department, Defendants-Appellees. James Christopher DAHL, Plaintiff, and Ronald L. Shugart, Plaintiff-Appellant, v. CITY OF HUNTINGTON BEACH; Ron Lowenberg, Chief of Police; Charles Conlosh, Officer individually and as an officer of the Huntington Beach Police Department; John Cottriel, officer individually and as an Officer of the Huntington Beach Police Department; E. Krause, individually and as an Officer of the Huntington Beach Police Department; Officer Rand, individually and as an Officer of the Huntington Beach Police Department, Defendants-Appellees.
    Nos. 94-55971, 94-55972.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Jan. 11, 1996.
    Decided May 28, 1996.

      Robert C. Moest, Fleishman, Fisher & Moest, Los Angeles, California, for plaintiff-appellant Dahl.
    Donald W. Cook, Los Angeles, California, for plaintiff-appellant Shugart.
    Mark D. Rutter, Moore & Rutter, Long Beach, California, for the defendants-appel-lees.
    Before: BRIGHT, NORRIS, and WIGGINS, Circuit Judges.

       The Honorable Myron H. Bright, Senior United States Circuit Judge, Eighth Circuit Court of Appeals, sitting by designation.

   OPINION

BRIGHT, Circuit Judge.

If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.

This case illuminates the growing incivility among contending lawyers which mars our justice system and harms clients and the public interest. James Christopher Dahl and Ronald L. Shugart brought this civil rights action pursuant to 42 U.S.C. §§ 1983 and 1988 against the City of Huntington Beach, California (City) and various police officers, After extensive delays and abusive discovery conduct by attorneys for both parties, the district court eventually dismissed the entire case with prejudice. Dahl and Shugart appeal. We reverse the district court because outright dismissal penalizes Dahl and Shu-gart for their counsels’ bad behavior, but rewards the opposing parties, notwithstanding that opposing counsels’ uncivil conduct also contributed to the discovery problems.

1. BACKGROUND

Dahl and Shugart jointly filed suit in August 1991. Each alleged that in a separate incident he was viciously attacked by a police dog named “Brent” as he lay on the ground already restrained by officers, and that officers beat him and ordered the dog to bite him repeatedly. The injuries inflicted included deep dog bites on the thighs, groins, arms, and legs requiring stitches, permanent shoulder damage, and severe bruises. The City responded that the officers had acted reasonably and only with the force necessary to overcome Dahl’s and Shugart’s attempts to resist detention.

Discovery in the case proceeded at a slow, tortured pace. In late 1992, the court ordered Shugart’s counsel Donald Cook to pay $2035 for filing a frivolous discovery motion. In September 1993, the City moved the court to compel Cook to pay the previously ordered sanction, and Cook did not oppose the motion. On October 18,1993, the court granted defendants’ motion and ordered Cook to pay $2035 and an additional $495 to cover defendants’ costs. The court further directed all plaintiffs’ counsel to pay $750 for failing to comply with a local rule. The court instructed counsel to pay these fines by October 25, and to file declarations in a specific clerk’s office attesting to payment. Plaintiffs’ counsel paid the $750, although one lawyer filed his declaration in the wrong clerk’s office and another paid the fine a day late. Cook refused to pay the other fines, arguing he had been singled out unfairly and he had been unable to appeal the original sanction because it had not been “entered.”

Throughout the process, the lawyers hindered the case’s progress by missing deadlines and ignoring court directions. Under California’s Central District Local Rule 9, counsel for the parties must meet at least forty days prior to the pretrial conference at a convenient time and place to exchange witness lists and exhibits, and plaintiffs must submit a memorandum of contentions of fact and law as well as a joint exhibit and witness list and joint pretrial order twenty-one days before the pretrial conference. After several delays, the court scheduled the pretrial conference for October 18,1993, and the trial for December 14, 1993. On October 18, the parties were not prepared to proceed. At that time, the court warned that the case would be dismissed if Cook failed to pay the various discovery sanctions or to file the joint exhibit and witness list as required by Local Rule 9. The court later amended the order to extend it to all plaintiffs’ counsel, and continued the pretrial conference until November 22, 1993.

On October 22, 1993, plaintiffs served a proposed joint exhibit list on defendants’ counsel. Separate exhibit lists had apparently already been exchanged by the parties and the joint list was merely a consolidation of the separate lists. Counsel for plaintiffs also offered to make the voluminous exhibits available for inspection and copying at the offices of plaintiffs’ counsel. Although the joint exhibit and witness list was due on November 1 pursuant to Local Rule 9, defendants did not sign or respond to plaintiffs’ proposed list until November 10, when they asked that certain changes be made to it. Defendants simultaneously moved for dismissal of the action for noncompliance with Local Rule 9. Defense counsel argued plaintiffs had not complied with Local Rule 9 because Cook had made the exhibits available for inspection at his office rather than their offices, and because no joint exhibit list had been filed by Cook or signed by defendants. Plaintiffs’ counsel Cook asserted defendants’ attorney had not responded to plaintiffs’ requests for a Local Rule 9 meeting made on October 11, 18, and 22, and November 7 and 9. Apparently, the parties’ lawyers got into yet another squabble over whose office would be the site of the Local Rule 9 meeting.

On November 12,1993, the court dismissed the ease with prejudice pursuant to Federal Rules of CM Procedure 41(b) and 16(f). The court based the dismissal on Cook’s failure to pay the ordered fine, on all plaintiffs’ counsels’ failure to follow the sanction payment procedure prescribed by the court, and on the failure to file the joint exhibit and witness list and joint pretrial order on time. Both Dahl and Shugart filed motions seeking to set aside the dismissal. The court denied those motions, and Dahl and Shugart appeal.

II. DISCUSSION

Federal Rule of Civil Procedure 41(b) provides that a defendant may move for dismissal of an action for “failure of the plaintiff to prosecute or to comply with these rules or any order of court.” Federal Rule of Civil Procedure 16(f) provides for the imposition of sanctions when an attorney disobeys a scheduling or pretrial order or is unprepared to participate in a pretrial conference.

Before imposing dismissal as a sanction, the district court must weigh several factors: the public’s interest in expeditious resolution of litigation; the court’s need to manage its docket; the risk of prejudice to the defendants; the public policy favoring disposition of cases on their merits; and the availability of less drastic sanctions. Thompson v. Housing Auth. of Los Angeles, 782 F.2d 829, 831 (9th Cir.) (per curiam), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986). “Dismissal, however, is so harsh a penalty it should be imposed as a sanction only in extreme circumstances.” Id. This court reviews a district court’s dismissal under rule 41(b) for abuse of discretion, determining whether the sanction was clearly outside the acceptable range based upon the facts of the particular case. Chism v. National Heritage Life Ins. Co., 637 F.2d 1328, 1331 (9th Cir.1981), overruled on other grounds, Bryant v. Ford Motor Co., 844 F.2d 602, 605 (9th Cir.1987) (en banc); see also Hyde & Drath v. Baker, 24 F.3d 1162, 1169 (9th Cir.1994).

Here, the court dismissed the case because the plaintiffs’ attorneys had failed to pay sanctions in the manner prescribed by the court, one attorney had failed, to pay sanctions altogether and a timely joint exhibit and witness list had not been filed. Under the particular facts of this case, we conclude the dismissal was improper because public policy strongly favored resolution of this dispute on the merits, outright dismissal penalized only one of two parties guilty of discovery abuse, and dismissal severely penalized plaintiffs Dahl and Shugart for their counsels’ bad behavior.

In cases that implicate important public policy concerns, the court should weigh the public interest in the case and the preference for disposing of cases on their merits prior to granting dismissal. United States v. National Medical Enters., Inc., 792 F.2d 906, 913 (9th Cir.1986). The underlying claim of police brutality in this case is a serious one, calling into question the manner by which the state exercises its monopoly on the legitimate use of force. Thus, the public has an interest in having this ease decided on the merits.

Furthermore, in arguing against the dismissal with prejudice, appellants Dahl and Shugart contend that the blame for the discovery delays at issue rests to some degree with the appellees. We agree. This unseemly extended dispute over whose office should be used for a meeting reveals both parties to be capable of unprofessional behavior. Although a party may be penalized for his counsel’s actions, see Chism, 637 F.2d at 1332, this court has “acknowledge[d] that the degree of a plaintiff’s personal responsibility for malfeasance is relevant to the propriety of dismissal.” Malone v. United States Postal Serv., 833 F.2d 128, 134 (9th Cir.1987), cert. denied, 488 U.S. 819, 109 S.Ct. 59, 102 L.Ed.2d 37 (1988). Here, the unpaid sanctions were imposed only against counsel. Appellees have cited no authority for the proposition that dismissal is proper solely on the ground that counsel failed to pay a monetary sanction imposed against counsel. This is not surprising given that dismissal is “the most severe penalty” and is authorized only in “extreme circumstances.” United States ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. Co., 857 F.2d 600, 603 & n. 5 (9th Cir.1988). Appellees’ counsel appear to share the blame for the failure to file the joint exhibit and witness list-the only other ground on which the court based its dismissal. Under these particular circumstances, we deem it inappropriate to impose dismissal, and in effect the entire penalty upon the clients for recalcitrant behavior by their counsel as well as the opposition.

Attorney Cook also appeals the district court’s imposition of money sanctions against him. The district court has great latitude in imposing sanctions for discovery abuse, and this court reviews such decisions for abuse of discretion. In re Akros Installations, Inc., 834 F.2d 1526, 1530 (9th Cir.1987). Here, the magistrate judge found several items Cook and other plaintiffs’ counsel requested either duplicative of an earlier request which had been denied or so frivolous on their faces as to justify an award of attorneys fees. These October 1992 requests were duplicative only as to Cook (rather than all plaintiffs’ counsel) because Cook alone had propounded the earlier request in November 1991. Upon plaintiffs’ motion for review of the order, the district court reviewed the parties’ arguments and the relevant documents and concluded the magistrate judge’s imposition of sanctions was not clearly erroneous or contrary to law. On the record and briefs submitted, we cannot say the district court abused its discretion in imposing the money sanctions against Cook.

Accordingly, we REVERSE the district court’s order dismissing this action. We AFFIRM the district court’s imposition of monetary sanctions against attorney Cook.

      . Krueger v. Pelican Prod. Corp., No. CIV—87—2385-A (W.D.Okla. Feb. 24, 1989) (Judge Wayne E. Alley) (order denying motion to dismiss action).

      . During earlier squabbles in September 1993, the defendants had made an ex parte application to the district court requesting the court to order the plaintiffs to come to their offices for a Rule 9 meeting. Plaintiffs had opposed the motion arguing that the burden was on plaintiffs to insure the filing of the pretrial order and that defendants’ request was contrary to longstanding Central District practice. The court had denied the defendants' motion, noting that “[f]rom the parties’ various filings, it is apparent to the Court that their failure to comply with Local Rule 9 results from a petty squabble over where the 40-day Meeting of Counsel will take place. The Court declines to involve itself in such matters and thus denies defendants’ ex parte applica-tion_” (Excerpts of Record, pp. 115-116).


author: BRISCOE, Circuit Judge.

text:
    CONSUMERS GAS & OIL, INC., Plaintiff-Appellee, v. FARMLAND INDUSTRIES, INC., Defendant-Appellant, James L. Rainey; G.C. Matthiesen; Harry D. Cleberg; J.D. Atwood; Tim R. Daugherty; Stephen P. Dees; G.E. Evans; R.W. Honse; Earl L. Knauss; H. Wayne Rice; B.L. Sanders; and John Doe Directors 1-25, Defendants-Appellees.
    No. 95-1058.
    United States Court of Appeals, Tenth Circuit.
    May 17, 1996.

      Terry W. Schackmann, of Spencer Fane Britt & Browne, of Kansas City, Missouri, (Barry L. Pickens and Jennifer A. Downs, of Spencer Fane Britt & Browne, of Kansas City, Missouri, and Daniel F. Wake, of Daniel F. Wake, P.C., of Denver, Colorado, with him on the brief), for appellant.
    Richard G. Sander, of Popham, Haik, Sehnobrieh & Kaufman, Ltd., of Denver, Colorado, (David S. Fein, of Popham, Haik, Sehnobrieh & Kaufman, Ltd., of Denver, Colorado, and Frank A. Taylor and Patrick A. Reinken, of Popham, Haik, Sehnobrieh & Kaufman, Ltd., of Minneapolis, Minnesota, with him on the brief), for plaintiff-appellee.
    Before TACHA, HOLLOWAY, and BRISCOE, Circuit Judges.
   BRISCOE, Circuit Judge.

Farmland Industries, Inc., (Farmland) appeals a contempt order issued by the district court upon its finding that Farmland breached an order approving the parties’ settlement agreement. Because the order approving the agreement did not contain the provision allegedly violated by Farmland, we reverse.

I.

Farmland is a Kansas corporation, organized and conducting business as a regional agricultural cooperative. Consumers Oil & Gas, Inc., (Consumers) is a former Colorado farm cooperative and a former member of Farmland. Consumers brought claims under various federal and state theories to recover equity that Farmland allegedly wrongfully refused to redeem. Shortly before trial, the parties entered into a Stipulation of Settlement, in which the parties agreed “[tjhere shall be no press release and no communication with the media concerning the settlement of this Action, or concerning the Action itself, except a joint release to be approved by both Class Counsel and Defendant Farmland on or before July 7, 1993.” Appellant’s br. append. C at 14. The district court approved the stipulation and its order discussed in detail the manner in which Farmland was to satisfy Consumers’ claims. The order did not specifically discuss or explicitly refer to the prohibition of press releases and communications to the media. The order generally provided: “This Order shall be considered an implementation of the Stipulation of Settlement. The Stipulation of Settlement shall not be considered merged into this Order or superseded by it.” Appellant’s Append. I at 161. It further provided:

Without affecting the finality of this Judgment in any way, the Court reserves continuing jurisdiction over the implementation and enforcement of the terms of the Stipulation of Settlement and any issues relating to Subclass membership, notice to Class Members, distributions to Class Members, allocation of expenses among the class, disposition of unclaimed payment amounts, and all other aspects of this action, until all acts agreed to be performed under the Stipulation of Settlement shall have been performed and the final order of dismissal referenced above has become- effective or until October 1, 1996, whichever occurs latest.

Id. at 162.

After the court entered its order, Consumers’ counsel filed another action against Farmland, on behalf of a separate class, in the United States District Court for the Southern District of Iowa (the Great Rivers litigation). Farmland subsequently published an article in its corporate newsletter under the heading of “Opinion” entitled “Lawsuit challenges cooperative governance.” Appellant’s br. append. D. The article discussed the Great Rivers litigation as well as the instant case. The newsletter also contained a “Q & A” section that discussed the instant case and some of the terms of the settlement agreement. Farmland sent the newsletter to approximately 150,000 customers, a few members of Congress, “some Kansas City area libraries,” and “various national and state cooperative associations.” Appellant’s append. I at 221.

Consumers moved for civil contempt, arguing the article violated the court’s order. The district court issued a contempt citation in which it ordered Farmland to show cause why the court should not find it in contempt. Following a hearing, presided over by a different district judge than the one who authored the order; the court concluded the section of the stipulation prohibiting communications to the media was part of the district court’s order, and Farmland breached it by discussing the case in its corporate newsletter. The court found Farmland in contempt and imposed sanctions. Farmland was ordered to pay Consumers’ fees and costs related to the contempt proceeding, and to publish in its newsletter (1) a notice that it had been held in contempt of court and ordered to pay Consumers’ fees and costs, (2) a notice that the court directed it to state that its comments were misleading, (3) a retraction of certain comments, and (4) an apology to the court and all concerned.

II.

Farmland argues the court erred (1) by predicating contempt on an alleged violation of a provision of the settlement agreement not explicitly set forth in the court’s order, (2) by finding that Farmland violated the settlement agreement, (3) by ordering “criminal” sanctions that neither compensated Consumers’ injuries nor coerced Farmland to end a continuing violation, and (4) by punishing speech deemed critical of a prior court decision. We first address whether we have jurisdiction to consider this appeal.

A.

Consumers argues we lack jurisdiction over Farmland’s appeal. The parties dispute whether the contempt is civil or criminal; Consumers argues it is civil, but Farmland argues it is criminal. Generally, “a party to a pending proceeding may not appeal from an order of civil contempt except as part of an appeal from a final judgment, whereas an adjudication of criminal contempt is a final order appealable prior to final judgment.” Pro-Choice Network of Western New York v. Walker, 994 F.2d 989, 994 (2d Cir.1993). See also Fox v. Capital Co., 299 U.S. 105, 107, 57 S.Ct. 57, 58, 81 L.Ed. 67 (1936) (stating party to pending proceeding may not appeal from order of civil contempt except as part of appeal from final judgment); In re Christensen Engineering Co., 194 U.S. 458, 24 S.Ct. 729, 48 L.Ed. 1072 (1904) (explaining adjudications of criminal contempt appealable prior to final judgment). However, in O’Connor v. Midwest Pipe Fabrications, 972 F.2d 1204, 1208 (10th Cir.1992), we explained:

On the question of finality, we are mindful of the general rule that “a finding of civil contempt is not reviewable on interlocutory appeal.” Combs v. Ryan’s Coal Co., 785 F.2d 970, 976 (11th Cir.), cert. denied sub nom, Simmons v. Combs, 479 U.S. 853, 107 S.Ct. 187, 93 L.Ed.2d 120 (1986). Despite this rule, however, in the postjudgment stage of a case, “[o]nee the finding of contempt has been made and a sanction imposed, the order has acquired all the ‘elements of operafciveness and consequence necessary to be possessed by any judicial order to enable it to have the status of a final decision’ ” under 28 U.S.C. § 1291 (1976). Shuffler v. Heritage Bank, 720 F.2d 1141, 1145 (9th Cir.1983) (quoting SEC v. Naftalin, 460 F.2d 471, 475 (8th Cir.1972)).

In the instant case, the district court made a finding of contempt in the “postjudgment stage” and imposed specific, unavoidable sanctions. Consumers’ arguments to the contrary are unpersuasive. Thus, the contempt order is appealable regardless of whether it is more properly characterized as criminal or civil. We turn to the merits of Farmland’s appeal.

B.

“A district court has broad discretion in using its contempt power to require adherence to court orders.” United States v. Riewe, 676 F.2d 418, 421 (10th Cir.1982). However, in determining whether a court committed legal error by violating limits on its contempt power, our review is de novo. O’Connor, 972 F.2d at 1209.

Farmland contends contempt was improper because the district court’s order did not incorporate the provision of the stipulation prohibiting press releases or communications to the media. Farmland argues for strict construction of Federal R. Civ. P. 65(d). In response, Consumers argues Kokkonen v. Guardian Life Ins. Co. of America, — U.S. -, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994), overrules the authorities on which Farmland relies. Consumers misreads Kokkonen. Kokkonen addresses a jurisdictional question: whether a federal district court has “inherent power” or “ancillary jurisdiction” to enforce a dismissal-producing settlement agreement. Kokkonen holds that a court lacks subject matter jurisdiction to enforce a settlement absent an independent jurisdictional basis or a reservation of jurisdiction in the order dismissing the action. Kokkonen neither prohibits nor discourages strict construction of Rule 65(d).

Farmland allegedly violated a term of a settlement agreement approved by a judicial order. “Standing alone, a settlement agreement is nothing more than a contract; the imprimatur of an injunction is required to render it a consent decree enforceable through contempt.” D. Patrick v. Ford Motor Co., 8 F.3d 455, 460 (7th Cir.1993). Rule 65(d) governs the form and scope of injunctive orders. “[T]he term ‘injunction’ in Rule 65(d) is not to be read narrowly but includes all equitable decrees compelling obedience under the threat of contempt.” 11A Wright, Miller & Kane, Federal Practice and Procedure § 2955, at 309 (1995).

Rule 65(d) provides in part: “Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; [and] shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained.” (Emphasis added.) The rule is phrased in mandatory language. “[It] expressly proscribes the issuance of an injunction which describes the enjoined conduct by referring to another document.” Thomas v. Brock, 810 F.2d 448, 450 (4th Cir.1987). The proscription protects those who are enjoined by informing them of the specific conduct regulated by the injunction and subject to contempt. See 11A Federal Practice and Procedure Charles A. Wright, Arthur R. Miller & Mary Kay Kane § 2955, at 310.

The Seventh Circuit has held that a provision of a settlement agreement not explicitly set forth in a judicial order is not enforceable by contempt. H.K. Porter Co. v. National Friction Products, 568 F.2d 24 (7th Cir.1977). Similarly, it has held that merely retaining jurisdiction to enforce the agreement is not enough to transform it into an order enforceable by contempt. D. Patrick, 8 F.3d at 461. Both holdings faithfully apply the plain language of Rule 65(d) by prohibiting incorporation by reference. In H.K Porter, the Seventh Circuit explained generally as follows:

Because of the risks of contempt proceedings, civil or criminal, paramount interests of liberty and due process make it indispensable for the chancellor or his surrogate to speak clearly, explicitly, and specifically if violation of his direction is to subject a litigant ... to coercive or penal measures, as well as to payment of damages.

568 F.2d at 27.

The Seventh Circuit strictly construes Rule 65(d). See also Seattle-First Nat. Bank v. Manges, 900 F.2d 795, 799 (5th Cir.1990) (strictly construing “no-reference” requirement of Rule 65(d)); Thomas, 810 F.2d at 450 (same). Cf. Hartford-Empire Co. v. United States, 323 U.S. 386, 410, 65 S.Ct. 373, 385, 89 L.Ed. 322 (1945) (eliminating part of injunction enjoining appellants “from violations ‘as charged in the complaint’”). Not all circuits strictly construe Rule 65(d). See, e.g., Williams v. City of Dothan, 818 F.2d 755, 761 (11th Cir.) (explaining “Rule 65(d) should not be applied strictly; rather the inquiry should be whether the parties subject to the injunctive order understood their obligations under the order”), modified, 828 F.2d 13 (11th Cir.1987). This court has not clearly indicated whether Rule 65(d) should be construed strictly. Cf. Citizen Band Potawatomi Indian Tribe of Oklahoma v. Oklahoma Tax Com’n, 969 F.2d 943, 946 n. 3 (10th Cir.1992) (noting order failed to comply with Rule 65(d), but avoiding issue because parties did not argue violation of Rule 65(d), because all concerned knew scope of injunction, and because order described in “reasonable detail” the conduct enjoined); Commercial Sec. Bank v. Walker Bank & Trust Co., 456 F.2d 1352, 1356 (10th Cir.1972) (stating generally that “Rule 65 must be strictly complied with”); Munitions Carriers Conference v. American Farm Lines, 440 F.2d 944, 947-48 (10th Cir.1971) (discussing injunction that referred to enjoi-nee’s duties under various statutes).

Rule 65(d) is clear. “Every order granting an injunction ... shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained.” (Emphasis added.) After reviewing the authorities presented by the parties and conducting our own research, we are persuaded the better view is to construe Rule 65(d) strictly and thereby give effect to its plain, mandatory language. By reaching this result, we refrain from substituting ad hoc uncertainty for the rule’s uniformity and clarity, and we advance two important functions performed by the rule: (1) to prevent confusion on the part of those faced with injunctive orders and (2) to aid the appellate court in defining the bounds of the injunctive relief, cf. Schmidt v. Lessard, 414 U.S. 473, 476-77, 94 S.Ct. 713, 715-16, 38 L.Ed.2d 661 (1974) (per curiam) (discussing functions Rule 65(d) designed to perform).

III.

Although the district court specified in its order that it retained jurisdiction, and although it set forth some provisions of the parties’ settlement agreement, it did not expressly set forth the provision prohibiting communications to the media. Since the district court did not expressly set forth the prohibition, it may not be enforced by contempt. Farmland’s first argument is disposi-tive; therefore, we do not reach its alternative arguments.

The district court’s contempt order is REVERSED.

      . This court granted Farmland's motion to stay enforcement of the contempt order pending resolution of this appeal.


text:
    RELIANCE INSURANCE COMPANY, a Pennsylvania corporation, Plaintiff-Appellant, v. MAST CONSTRUCTION COMPANY, a corporation; Mast Industrial, Inc., a corporation; Ronald Earl Mast, Linda M. Mast, individually and as trustees of the Ronald E. Mast Living Family Trust, aka Aremeco Management Co.; Hardware Specialties, Inc., a corporation; Roger J. Mast; Marie G. Mast; Christopher Mast, individuals, Defendants, First Security Bank of Utah, N.A., Defendant-Appellee.
    No. 95-4054.
    United States Court of Appeals, Tenth Circuit.
    May 17, 1996.

      Andrew M. Morse (David W. Slaughter and Camille N. Johnson on the brief), of Snow, Christensen & Martineau, of Salt Lake City, Utah, for the appellant.
    James S. Jardine (Steven H. Gunn and Keith A. Kelly with him on the brief), of Ray, Quinney & Nebeker, of Salt Lake City, Utah, for the appellees.
    Before BALDOCK, EBEL, and BRISCOE, Circuit Judges.
   BRISCOE, Circuit Judge.

Plaintiff Reliance Insurance Company (Reliance) appeals from the district court’s order granting summary judgment in favor of defendant First Security Bank of Utah, N.A. (First Security) in a contempt proceeding instituted by Reliance. We affirm in part, reverse in part, and remand.

During a period prior to and including 1988, Reliance furnished several contractor performance and payment bonds for Mast Construction Company (Mast) in connection with various public construction projects in California, Utah, and Nevada, on which Mast served as general contractor. In early October 1988, following increasing numbers of claims upon its bonds by unpaid suppliers and subcontractors, and based upon correspondence and other information it received indicating a potential default on at least one of the bonded construction projects, Reliance sent representatives to meet with Ronald Mast, president of Mast. Rebanee representatives sought details of Mast’s financial standing, plans for completion of the bonded projects and payment of project-related obligations, and assurances of its willingness and ability to hold Rebanee harmless from any bond loss or habihty.

On October 17, 1988, having failed to receive any assurances of cooperation from Mast, and anticipating substantial losses under its bonds, Rebanee filed an indemnity action against Mast and its indemnitors, Ronald Mast and Linda Mast (Mast defendants). On that same date, Rebanee sought and obtained, ex parte, a temporary restraining order enjoining the transfer of funds and other assets of the named defendants “other than in the normal course of business.” Appellant’s append. I at 133. A copy of the temporary restraining order, with a copy of the summons and complaint, was hand delivered to Mast’s counsel that same day.

A copy of the temporary restraining order was allegedly hand delivered to First Security on October 19,1988, and received through Larry Gwynn, branch manager at First Security’s First South Branch. As of October 19,1988, Mast held more than $1.8 million on account at First Security. According to Reliance, these funds represented the balance of approximately $2.37 million in project contract payments that Mast deposited in August 1988.

On the morning of October 20, 1988, Ronald Mast appeared at First Security’s Ivy Place Branch and withdrew or transferred the entire balance of Mast’s account. In particular, he transferred approximately $1,358,104.20 to new accounts at First Security in the name of REMCO Construction, Inc., and U.S. General, Inc., and withdrew approximately $500,000 in cashier’s checks payable to REMCO. Two of the cashier’s cheeks, totaling $200,000, were subsequently deposited at another bank and used to purchase gold coins. The remaining cheeks were used a week later to establish additional accounts at First Security.

Mast also withdrew $2,500 that same day from a “City Wide Leasing” account at First Security’s West Jordan Branch, and Linda Mast withdrew $2,500 from a “Ronald E. Mast Family Savings Account” at First Security’s 72nd South Branch.

On October 21, 1988, Reliance sought and received an amended temporary restraining order imposing a judicial lien upon all assets and property owned by Mast, Ronald Mast, and Linda Mast, and “all property in which said defendants have or maintain an interest,” including “accounts of deposit.” Appellant’s append. I at 146. In response to an observation from another bank’s counsel that reference in the October 17 temporary restraining order to transactions “other than in the ordinary course” provided an ambiguous standard for compliance and enforcement, the amended order directed that “none of such funds, assets or other property shall be paid, sold, transferred, liened or encumbered without prior Court approval.” Id. According to its terms, the amended order purported to be “binding upon all financial institutions and ... their officers, agents, employees and attorneys ... who receive actual notice of this Order, by personal service by publication or otherwise.” Id. The October 21 temporary restraining order was to expire, according to its terms, on October 31, 1988, at 1:30 p.m. The order was subsequently extended by a series of extension orders.

Reliance alleges that on October 21, 1988, it attempted to hand deliver a copy of the amended order to First Security’s First South Branch, but a bank officer refused service and directed the representative of Reliance to deliver the document to First Security’s Central Operations office in Salt Lake City. Reliance alleges that, because of the time of day, delivery was delayed until the next business day, October 24, 1988. First Security contends the amended order was not delivered until sometime between October 28 and October 31,1988.

On October 25, 1988, Ronald Mast made arrangements with Kraig Murdock, a branch manager of First Security, to secure a line of credit loan for REMCO. On that same date, Christopher Mast, son of Ronald Mast, purported to be the vice president of REMCO and signed loan documents at First Security’s Sugarhouse Branch for the arranged $300,000 line of credit. Although Murdock was aware of the October 17 temporary restraining order, he waited until after Christopher Mast left to inform Lynn Goodale, a loan processor, what had transpired. In turn, Goodale informed First Security’s area manager and counsel of the situation. Goo-dale also telephoned the district court and was advised the temporary restraining order had been extended an additional ten days.

On or about October 26, 1988, Murdock telephoned Ronald Mast to inform him that, in light of the temporary restraining order, First Security had decided not to proceed with the REMCO line of credit loan. In response, Ronald Mast informed Murdock he intended to close his accounts at First Security. On that same day, Ronald Mast withdrew or transferred all of his remaining funds at First Security. Between October 28 and November 9, 1988, he used portions of the withdrawn funds to open additional accounts at First Security and to obtain numerous cashier’s checks. According to Reliance, all of these funds were eventually converted to cash or precious metals.

On December 22, 1988, the district court heard Reliance’s motion for a preliminary injunction prohibiting the use or transfer of the assets. At that time, the court (1) terminated the October 17 and October 21 temporary restraining orders; (2) noted that Reliance had an adequate remedy at law; and (3) noted that the proposed preliminary injunction order was overly broad. Nevertheless, the court enjoined Ronald Mast from making fraudulent conveyances or hiding assets from creditors.

According to Reliance, it first learned of the accounts at First Security, as well as the numerous transfers and withdrawals from those accounts, in May 1989. On May 17, 1989, at the request of Reliance, the district court issued a written order (1) appointing a temporary receiver for all property and records of Mast; and (2) enjoining Mast, Ronald Mast, and Linda Mast from “conveying, selling, trading, transferring, secreting, [or] encumbering their assets, except as required for payment of necessities.” Appellant’s append. I at 175.

On April 26, 1990, Reliance entered into a stipulated settlement agreement with the Mast defendants. Under the terms of the agreement, Reliance received a $10,000,000 judgment against defendants. However, Reliance asserts the judgment was “empty and largely meaningless,” due in part to the withdrawals or transfers of approximately $1.8 million in funds maintained at First Security.

In February 1991, Reliance filed suit against First Security, asserting claims of negligence, civil contempt, and civil conspiracy. In May 1992, Reliance amended its complaint to include trust-based theories of recoveiy, and the action was subsequently consolidated with the underlying action. On September 28, 1992, the district court dismissed Reliance’s conspiracy claims and granted partial summary judgment in favor of First Security on the negligence claims. In doing so, the court held that an alleged violation of the court’s temporary restraining order could not support a separate negligence claim.

On April 24, 1994, the district court issued an order granting First Security’s motion for partial summary judgment on Reliance’s civil contempt claims. The court concluded the two temporary restraining orders issued in October 1988 were “invalidated” on December 22, 1988, when the court rejected Reliance’s request for a preliminary injunction. More specifically, the court concluded the restraining orders were invalidated at that time “because they were overbroad and because Reliance had an adequate remedy at law.” Appellant’s append. II at 674. Accordingly, the district court refused to impose civil contempt liability based upon an alleged violation of either order. As an additional basis for granting partial summary judgment in favor of First Security, the court concluded that First Security did not fall within the scope of persons bound by restraining orders under Fed.R.Civ.P. 65(d). Specifically, the court held that the “active concert or participation” exception for non-parties under Rule 65(d) “requires a showing of something akin to alter ego, collusion, or identity of interest,” and concluded there were “no facts, or even allegations, from which it [could] be construed that the appearance of the Mast defendants was ‘tantamount to the appearance’ of First Security in this matter.” Appellant’s append. II at 674, 676.

All remaining claims were dismissed by stipulation and a final judgment and order was entered on March 3, 1995. Reliance appeals only the summary judgment entered on its civil contempt claims.

We review a district court’s adjudication of civil contempt for abuse of discretion. O’Connor v. Midwest Pipe Fabrications, 972 F.2d 1204, 1209 (10th Cir.1992). In doing so, however, we review the district court’s conclusions of law de novo and any findings of fact for clear error. Badger Meter v. Grinnell Corp., 13 F.3d 1145, 1154-55 (7th Cir.1994). Abuse of discretion is established if the district court’s adjudication of the contempt proceedings is based upon an error of law or a clearly erroneous finding of fact. Id.

Did expiration of the temporary restraining orders eliminate Reliance’s right to seek a compensatory civil contempt judgment for prior violation of those temporary restraining orders?

Generally speaking, a person who violates an injunction or temporary restraining order during its pendency is subject to a compensatory civil contempt judgment, even if the injunction or restraining order later terminates due to passage of time or mootness. See In re General Motors Corp., 61 F.3d 256, 259 n. 3 (4th Cir.1995); Coleman v. Espy, 986 F.2d 1184, 1190 (8th Cir.), cert. denied — U.S. —, 114 S.Ct. 301, 126 L.Ed.2d 249 (1993); Petroleos Mexicanos v. Crawford Enterprises, 826 F.2d 392, 400 (5th Cir.1987); In re Keene Corp., 168 B.R. 285, 289 (Bankr.S.D.N.Y.1994). However, the right to this remedial relief for violation of an injunction or temporary restraining order falls with an injunction or temporary restraining order “which events prove was erroneously issued, ... and a fortiori when the injunction or restraining order was beyond the jurisdiction of the court.” United States v. United Mine Workers of America, 330 U.S. 258, 295, 67 S.Ct. 677, 696-97, 91 L.Ed. 884 (1947) (citations omitted). Although this language in United Mine Workers is dicta, it remains the principal authority on the effect of the reversal of an erroneous order. Stated more clearly, a claim for civil contempt must fall if the order that was disobeyed is subsequently reversed by the issuing court or the appellate court, or if its issuance exceeded the power of the issuing court. Keene, 168 B.R. at 291.

Here, First Security has not claimed, and we do not conclude, that the district court was without jurisdiction to enter either of the October restraining orders. To the contrary, the record indicates the court had jurisdiction to enter the orders and properly exercised that jurisdiction after determining the orders were necessary to maintain the status quo pending a decision on Reliance’s request for a preliminary injunction.

Turning to the validity of the temporary restraining orders, we reject the notion that expiration of the orders in December 1988 rendered them “erroneous” or “invalid” for purposes of a subsequent compensatory civil contempt action. Although the district court denied Reliance’s request for a preliminary injunction at that time, it made no findings with respect to the validity of the restraining orders until April 1994. Accordingly, we conclude that expiration of the temporary restraining orders in December 1988 did not terminate Reliance’s right to seek a compensatory civil contempt judgment based upon First Security’s alleged violation of the orders, and the district court erred in holding otherwise. See Keene, 168 B.R. at 294 (termination of a properly issued temporary restraining order does not affect a party’s right to compensatory civil contempt damages arising from its violation).

With respect to the October 17 restraining order, however, we find a separate basis for affirming the district court’s entry of summary judgment on the contempt claim filed by Reliance. In granting summary judgment in favor of First Security, the district court found the October 17 temporary restraining order failed to meet the requirements of Rule 65(d) because it was not sufficiently definite and specific to support a civil contempt judgment. See Grace v. Center for Auto Safety, 72 F.3d 1236, 1241 (6th Cir.1996). We agree. Therefore, we conclude the October 17 restraining order was invalid and cannot provide the basis for a compensatory civil contempt action.

As for the October 21 restraining order, the court characterized it in passing as “over-broad,” but made no specific findings as to its shortcomings. Accordingly, we remand for further findings by the district court on the question of whether the order was sufficiently clear and unambiguous to inform First Security of what conduct was prohibited. See Grace, 72 F.3d at 1241.

Can First Security, as a nonparty, be held in contempt of the district court’s October 21 restraining order?

Under Rule 65(d), a “restraining order ... is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and wpon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.” (Emphasis added.) Thus, although a nonparty is typically not bound by a temporary restraining order, a significant exception occurs where a nonparty has actual notice of a restraining order and is in active concert or participation with a party or his privy. See 11A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2956, at 387 (2d ed.1995).

In the present case, the district court construed this “active concert or participation” exception to include only those situations where there is “a showing of something alón to alter ego, collusion, or identity of interest” between a party and a nonparty. We do not read this exception so narrowly. Although we agree that “alter ego, collusion, or identity of interest” would be sufficient to make a restraining order binding upon a nonparty who has actual notice of the order, we also conclude the exception encompasses those situations where a nonparty with actual notice aids or abets a named defendant or his privy in violating the order. See Gemco Latinoamerica v. Seiko Time Corp., 61 F.3d 94, 98 (1st Cir.1995); NBA Properties v. Gold, 895 F.2d 30, 33 (1st Cir.1990) (construing nonparty exception in Rule 65(d) “as requiring that a person either be ‘legally identified with’ a party in the case or ‘aid and abet’ the party to violate a decree”).

Here, the evidence indicates that First Security aided and assisted Ronald Mast in completing a fairly complicated series of fund withdrawals and transfers in apparent violation of the October 21 restraining order. Assuming that First Security had actual notice of the October 21 order at the time of those withdrawals and transfers, we conclude that First Security falls within the scope of Rule 65(d), that it was bound by the October 21 order, and that it can be held in contempt thereof. Although First Security claims it was “merely ... carrying out its own independent contractual obligation to allow a depositor’s withdrawal upon request,” appel-lee’s br. at 32, the fact is that Ronald Mast could not have completed the transactions, thereby violating the October 21 order, without the aid and assistance of First Security. Moreover, Ronald Mast himself was prohibited by the order from requesting First Security to fulfill its contractual obligations. Accordingly, there could have been little risk to First Security in refusing his requests until such time as the order was lifted.

Because the district court’s resolution of the contempt proceedings was based in part upon erroneous conclusions of law and omissions of necessary factual findings, we remand this matter to the district court for further proceedings. In doing so, we note that Reliance faces significant hurdles before it can prevail.

A party alleging contempt and seeking a civil remedy must prove it by clear and convincing evidence. Grace, 72 F.3d at 1241. Under the circumstances of this case, Reliance must prove (1) that First Security had actual notice of the October 21 order at the time of the relevant withdrawals and transfers; (2) that the October 21 order was in effect at the time of the transactions, Petroleos, 826 F.2d at 401; and (3) that the October 21 order was “clear and unambiguous,” Grace, 72 F.3d at 1241, in its prohibition of these transactions. Any ambiguities or omissions in the order will be construed in favor of First Security. NBA Properties, 895 F.2d at 32.

Assuming that Reliance can prove these elements, it must also demonstrate actual damages. Gemco, 61 F.3d at 100 (A party “is liable in a civil contempt proceeding only for actual damages.”). As suggested by First Security, this could prove to be difficult in light of the fact that the restraining orders were lifted in December 1988, thereby freeing defendants to withdraw and transfer funds at will.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


author: MURPHY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Tyrone Maurice CLARK, Defendant-Appellant.
    No. 96-6004.
    United States Court of Appeals, Tenth Circuit.
    May 21, 1996.

      Tyrone Maurice Clark, El Reno, Oklahoma, pro se.
    Patrick M. Ryan, United States Attorney, Mary M. Smith, Assistant United States Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.
    Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.
   MURPHY, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R-App.P. 34(a); 10th Cir.R. 34.1.9. This case therefore is ordered submitted without oral argument.

Tyrone Maurice Clark appeals pro se from the Order of the district court denying his motion pursuant to Fed.R.Crim.P. 41(e) for the return of property. Clark claims that the method of service employed by the Federal Bureau of Investigation (“the FBI”) in the administrative forfeiture proceeding was constitutionally deficient. We affirm.

On June 21, 1994, Appellant Clark was arrested after negotiating the quantity, price, and delivery of six kilograms of cocaine with an undercover FBI agent. After his arrest, the FBI seized $101,760.00 in U.S. currency from Clark and his associate. A six-count indictment was returned against Clark in the United States District Court for the Western District of Oklahoma on August 3, 1994. On November 9, 1994, Clark pleaded guilty to count one, conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and the government subsequently dismissed the remaining five counts. Clark was sentenced on January 17, 1995, to 180 months of imprisonment and five years of supervised release.

In connection with the seizure of the currency, the FBI commenced an administrative forfeiture proceeding. Notice apprising Clark of the forfeiture proceeding and his right to contest it was accomplished by several means. On July 19, 1994, the FBI sent notice by certified mail to Clark at the Oklahoma County Jail where he was being held prior to his indictment. It also sent notice the next day to a Wichita, Kansas, address recorded for Clark at the time of his arrest. The return receipt for the County Jail notice was signed on July 25, 1994. The second return receipt, sent to the Wichita address, was signed by Dorothy Barnes, who appears to be Clark’s mother-in-law, on July 25,1994. The FBI also served notice by publication in The New York Times on August 7, 14, and 21, 1994. As no claim was made to contest the administrative forfeiture, a Declaration of Forfeiture was issued as to the seized currency on October 12,1994.

Almost two months after he was sentenced, Clark filed his Rule 41(e) motion for the return of the $101,760.00 in currency seized from him at the time of his arrest. The district court entered its Order denying Clark’s motion on December 12, 1994. It held that the currency had been administratively forfeited by the FBI and that the evidence showed Clark had been served with notice in a constitutionally adequate manner. This appeal followed.

On appeal, Clark asserts that the methods of service employed by the FBI were constitutionally defective so as to constitute a denial of due process. He concedes that he was incarcerated at the Oklahoma County Jail from the time of his arrest until his sentencing. But he contends that he did not receive the certified mailing of notice sent by the FBI to that facility. Clark claims that he should have been served in person at the jail. Furthermore, Clark maintains that the two additional forms of service were otherwise defective. In the alternative, Clark argues that the seizure and forfeiture constituted jeopardy in violation of the Double Jeopardy Clause of the Fifth Amendment.

In order to properly effect a forfeiture, the government is required to give notice to all persons who have or claim an interest in real property being administratively forfeited. See 19 U.S.C. § 1607; 21 C.F.R. § 1316.75. If no claim and bond are received by the forfeiting agency within the prescribed time limits, a declaration of forfeiture must be issued. See 19 U.S.C. § 1609; 21 C.F.R. § 1316.77(b).

Notice is designed “to apprise the affected individual of, and permit adequate preparation for, an impending ‘hearing.’” Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 14, 98 S.Ct. 1554, 1563, 56 L.Ed.2d 30 (1978). Due process thus requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950).

When the government can reasonably ascertain the name and address of an interested party, due process requires the government to send “[njotice by mail or other means as certain to ensure actual notice.” Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 2712, 77 L.Ed.2d 180 (1983). But due process does not require that the interested party actually receive the notice. United States v. 51 Pieces of Real Property, 17 F.3d 1306, 1316 (10th Cir.1994). “So long as the government ‘acted reasonably in selecting means likely to inform [the] persons affected, ... then it has discharged its burden.’ ” Id. (quoting Weigner v. City of New York, 852 F.2d 646, 649 (2d Cir.1988), cert. denied, 488 U.S. 1005, 109 S.Ct. 785, 102 L.Ed.2d 777 (1989)).

Due process issues, which call for legal conclusions, are subject to de novo review. See Facet Enters. v. NLRB, 907 F.2d 963, 970 (10th Cir.1990). But the question of whether the FBI employed means that were reasonably calculated to provide Clark actual notice is a question of fact, which we review for clear error. See 51 Pieces of Real Property, 17 F.3d at 1316.

Federal district courts have jurisdiction to review whether an administrative forfeiture satisfied due process and statutory requirements. United States v. Woodall, 12 F.3d 791, 793 (8th Cir.1993). Due process attacks on forfeiture proceedings may be pursued in a civil action under 28 U.S.C. § 1331. United States v. Giraldo, 45 F.3d 509, 511 (1st Cir.1995). But the fact that Clark brought his motion in the district court under Rule 41(e) does not defeat the district court’s jurisdiction to hear a due process challenge. Giraldo, 45 F.3d at 511. “Where criminal proceedings against the movant have already been completed, a district court should treat a rule 41(e) motion as a civil complaint.” Onwubiko v. United States, 969 F.2d 1392, 1397 (2d Cir.1992); United States v. Martinson, 809 F.2d 1364, 1366-67 (9th Cir.1987). As a result, we construe Clark’s Rule 41(e) motion liberally, as seeking to invoke the proper remedy.

Although the district court did not make a specific finding that the means employed by the FBI to give Clark notice were reasonable, we can infer such a finding from the district court’s ultimate holding that the notice to Clark was constitutionally adequate. See 51 Pieces of Real Property, 17 F.3d at 1316. When the government is aware that an interested party is incarcerated, due process requires the government to make an attempt to serve him with notice in prison. United States v. $184,505.01 in U.S. Currency, 72 F.3d 1160, 1163-64 (3d Cir.1995), petition for cert. filed, 64 U.S.L.W. 3669 (U.S. Mar. 28, 1996) (No. 95-1575); Giraldo, 45 F.3d at 511; Woodall, 12 F.3d at 794. The FBI mailed notice to Clark at the facility where he was incarcerated at the time. Clark admits that he was incarcerated at the Oklahoma County Jail when the FBI sent notice to him there. This means of service, by return-receipt, certified mail, was reasonably calculated to apprise Clark of the forfeiture action. We cannot say that the district court’s finding to this effect was clearly erroneous.

As the Supreme Court has indicated, service by mail is a constitutionally acceptable means to provide actual notice. See Mennonite Bd. of Missions, 462 U.S. at 800, 103 S.Ct. at 2712. Sending the certified mail notice to Clark at the Oklahoma County Jail thus satisfied due process requirements and, for that reason, we do not consider the adequacy of the FBI’s additional methods of service. That Clark may not have received the certified mail notice does not negate the constitutional adequacy of the FBI’s attempt to accomplish actual notice. Absent extraordinary circumstances, the FBI was not required to effect notice through every means calculated' to provide actual notice. See 51 Pieces of Real Property, 17 F.3d at 1318. Clark’s assertions that “[e]veryone is served in person in jail” and that the FBI should know that “most of the time [a certified letter is] never received by the person [who] is incarcerated,” notwithstanding, Clark has not shown the sort of exceptional circumstances that would have required the FBI to employ a means other than certified mail. We have found no case suggesting that ser-' vice by mail is inadequate or requiring the government to personally serve an interested party at the place of incarceration. We decline to create such a requirement here.

Because he failed to file a claim and cost bond that would have halted the process, Clark did not contest the administrative forfeiture proceeding. See 19 U.S.C. § 1608; 21 C.F.R. § 1316.76. As a result, he has lost his opportunity to litigate the forfeiture. See United States v. Castro, 78 F.3d 453, 456 (9th Cir.1996); Mayfield v. City of Virginia Beach, 780 F.Supp. 1082, 1085 (E.D.Va.1992).

Clark has similarly lost his opportunity to litigate his jeopardy claim. Clark asks this court to consider whether the “seizure constituted jeopardy.” But the administrative forfeiture became complete prior to Clark’s guilty plea and sentencing. Because of his failure to appear in response to the FBI’s constitutionally adequate notice and his resulting failure to contest the administrative forfeiture proceeding, Clark was not even placed in jeopardy until his sentencing. He thereby was necessarily not twice placed in jeopardy by the forfeiture.

Because Clark appeals pro se, we are obliged to read his pleading liberally. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972). Therefore, we construe his claim alternatively as an effort to raise the issue of double jeopardy concerning his subsequent guilty plea. Even with this construction of Clark’s argument, however, his double jeopardy argument also fails.

This court has recently held that where an interested party fails to contest the original, civil forfeiture proceeding, that party cannot raise a double jeopardy argument subsequent to sentencing for a related criminal offense. See United States v. German, 76 F.3d 315, 319-20 (10th Cir.1996). The reasoning behind German is that because of the failure to contest the administrative forfeiture, the would-be claimant was not a party to the forfeiture proceeding, not at risk of a determination of guilt, and thus was never in jeopardy. Id. at 319. A party who was never in jeopardy can never be in double jeopardy. Id.

By failing to file a claim in the forfeiture proceeding, Clark has missed his opportunity to litigate the question of his interest in the seized currency. His later Rule 41(e) motion does not suffice as a contest to the forfeiture and does not place him back in a position of jeopardy.

For the foregoing reasons, the Order of the district court denying Clark’s Rule 41(e) motion for the return of property is AFFIRMED.