author: BRISCOE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Donald BOWERS, Defendant-Appellant.
    No. 16-4008
    United States Court of Appeals, Tenth Circuit.
    Filed February 10, 2017

      Stephen R. McCaughey, Attorney at Law, Salt Lake City, Utah, for Defendant-Appellant.
    John W. Huber, United States Attorney, District of Utah; Jason R. Burt, Assistant United States Attorney, Salt Lake City, Utah, for Plaintiff-Appellee.
    Before BRISCOE, MATHESON and PHILLIPS, Circuit Judges.
   BRISCOE, Circuit Judge.

Defendant Donald Bowers was previously involved in a civil trade secret misappropriation case that was litigated in the United States District Court for the District of Utah. During the course of that litigation, Bowers willfully and repeatedly violated a permanent injunction issued by the district court presiding over the case, and also refused to purge himself of civil contempt. His actions resulted in findings of civil contempt against him, judgments against him for the plaintiffs attorneys’ fees, and, ultimately; a criminal referral to the United States Attorney for the District of Utah. A federal grand jury subsequently indicted Bowers on two counts of contempt, in violation of 18 U.S.C. § 401(3). The case proceeded to trial, where a jury found Bowers guilty of both counts. Bowers was sentenced to a term of imprisonment of fifteen months, to be followed by a thirty-six month term of supervised release. He was also directed, as a condition of supervised release, to make monthly payments on the outstanding amount owed by him to the plaintiff in the underlying civil case.

Bowers now appeals, arguing that the district court erred in (1) imposing a special condition of supervised release requiring him to make monthly payments on the outstanding judgments owed to the plaintiff in the civil case, (2) denying his motion for disclosure of the criminal referral, and (3) sentencing him to a term of imprisonment that exceeded six months. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm in all respects.

I

This criminal case has roots in an earlier civil case, ClearOne Communications, Inc. v. Bowers, 643 F.3d 735 (10th Cir. 2011) (Bowers I). The complete factual and procedural history of that civil case is detailed in Bowers I and will not be repeated here. Instead, we proceed to outline only the facts necessary to understand how the criminal charges arose against Bowers.

The filing of ClearOne’s lawsuit against the WideBand defendants

In early 2007, ClearOne Communications, Inc. (ClearOne) filed suit in Utah state court seeking relief for alleged misappropriation of its trade secrets. Those trade secrets, which ClearOne put to use in audio teleconferencing equipment, “allegedly included an acoustic echo cancella-

tion algorithm and sub-algorithms, in both source and object code form, nicknamed the Honeybee Code.” ClearOne Commc’ns, Inc. v. Bowers, 651 F.3d 1200, 1203 n.1 (10th Cir. 2011) (Bowers II). Ultimately named as defendants in the suit were WideBand Solutions, Inc. (Wide-Band), which was a Massachusetts corporation, and Andrew Chiang, Jun Yang, and Lonny Bowers (hereinafter Lonny), all of whom served as officers of Wide-Band. Collectively, these defendants will be referred to as the WideBand defendants. ClearOne’s lawsuit also named two additional corporations: Versatile DSP, Inc., and Biamp Systems (Biamp). “Chiang, Yang and WideBand removed the case to federal district court [in Utah] on the basis of diversity jurisdiction.” Bowers I, 643 F.3d at 744.

Donald Bowers’ initial involvement in the lawsuit

The defendant in the instant case, Bowers, is the father of Lonny. After ClearOne initiated its lawsuit against the WideBand defendants, Bowers began “loaning money to the WideBand defendants to pay a portion of the legal fees they were incurring.” Bowers II, 651 F.3d at 1203. Further, in June 2008, “Bowers and a Georgia-based company he founded called WideBand Solutions, Inc. (WideBand Georgia), entered into an agreement with” the WideBand defendants “pursuant to which WideBand would transfer its assets to WideBand Georgia.” Id. “ClearOne, upon learning of the asset transfer agreement, filed a motion for a temporary restraining order (TRO) and preliminary injunction to prevent any transfer of its alleged trade secrets.” Id. at 1204.

“The district court held a hearing on ClearOne’s motion on June 18, 2008, during which attorney Randolph Frails appeared by telephone as the legal representative for ... Bowers.” Id. “Frails represented during the hearing that the language of the asset transfer agreement excluded the trade secrets that the Wide-Band defendants had purportedly misappropriated from ClearOne.” Id. “Nevertheless, the district court ordered Frails and ... Bowers to provide counsel for ClearOne and the WideBand defendants with copies of the asset transfer agreement.” |d.

On “June 19, 2008, ClearOne filed a renewed motion for a TRO and preliminary injunction alleging that, contrary to Frails’ representations, the terms of the asset transfer agreement included Wide-Band’s intellectual property, most notably the Honeybee Code.” Id “ClearOne that same day also filed with the district court a separate lawsuit against WideBand Georgia and ... Bowers alleging fraudulent transfer.” Id. (citing ClearOne Commc’ns, Inc. v. WideBand Sols., Inc., No. 2:08-CV-00474-TS (D. Utah June 19, 2008)).

On June 26, 2008, the district court held a hearing “to address the asset transfer agreement.” Id. “Frails again appeared by telephone on behalf of ... Bowers and WideBand Georgia.” Id “During the hearing, the district court issued a TRO prohibiting the WideBand defendants from transferring the Honeybee Code.” Id. The district court also, as part of its TRO, “expressly prohibited the transfer of any related items, including all of the various codes that Yang had allegedly derived from the Honeybee Code while working for WideBand, and it directed the Wide-Band defendants to make a full disclosure and production of all documents relating to the asset transfer agreement.” Id

“On July 10, 2008, the district court, prompted by another TRO motion filed by ClearOne, held a ... hearing concerning the asset transfer agreement.” Id. Frails appeared by telephone on behalf of Bowers and WideBand Georgia, and stated that the asset purchase agreement had been rescinded because Bowers “felt that he was buying nothing.” Id. (internal quotation marks omitted). “Frails argued that ClearOne’s TRO motion was moot because no assets had been transferred and the asset transfer agreement had been rescinded.” Id The district court, relying on Frails’ representations, “denied ClearOne’s TRO motion as moot.” Id

“In October 2008, the district court granted ... Bowers’ motion to dismiss ClearOne’s case against him and Wide-Band Georgia without prejudice on the basis that the claims, all of which concerned the purportedly rescinded asset transfer agreement, were moot.” Id. at 1205.

The trial of ClearOne’s case against the WideBand defendants

ClearOne’s case against the WideBand defendants ultimately proceeded to trial in October 2008. “After hearing eleven days of evidence, the jury returned a special verdict finding in favor of ClearOne on each of its claims against the defendants.” Bowers I, 643 F.3d at 745. The verdict included substantial compensatory damages against all of the defendants, as well as punitive damages against Chiang and Yang. Id. (detailing the damages award).

Donald Bowers’ reemergence in the case

“On January 16, 2009, ClearOne filed a motion for an order to show cause why the WideBand defendants and ... Bowers should not be held in contempt of the district court’s June 26, 2008 TRO.” Bowers II, 651 F.3d at 1205. In support of its motion, ClearOne alleged that on November 6, 2008, the day after the jury returned its verdict in ClearOne’s case against the WideBand defendants, Bowers filed a statement in Massachusetts purporting to perfect a security interest in all of WideBand’s assets, including all of its software and intellectual property, pursuant to Article 9 of the Uniform Commercial Code. Id.

“On January 26, 2009, the district court issued an order to show cause directing the WideBand defendants and ... Bowers to appear before the court on February 10, 2009, and show cause why they should not be held in contempt for the reasons alleged in ClearOne’s motion.” Id. Although the evidence indicated that Bowers was properly served with the district court’s show cause order, he “failed to appear at the February 10, 2009 show cause hearing.” Id.

On February 24, 2009, the district court issued a written order concluding that Bowers was effectively subject to the district court’s June 26, 2008 TRO because he had acted in concert or participation with the WideBand defendants. Id. The district court also found that on November 6, 2008, Bowers had filed a UCC statement in Massachusetts listing WideBand as a debtor and describing the relevant collateral as all of WideBand’s assets, including its intellectual property. Id. Despite these findings and conclusions, however, the district court “ ‘continued’ the issue of whether Bowers should be held in contempt of the district court’s June 26, 2008 TRO, and directed Bowers to appear in person before the court on March 13, 2009, ‘to show cause why [he] should not be held in contempt for violating the June 26, 2008 Order.’ ” Id. (citation omitted). “On March 5, 2009, the district court vacated its February 24, 2009 show cause order and ordered that a show cause hearing regarding ... Bowers would be rescheduled at a future date.” Id.

The permanent injunction

“On April 9, 2009, the district court issued a permanent injunction against all of the defendants.” Bowers I, 643 F.3d at 745. The injunction permanently enjoined the WideBand defendants from disclosing, using or transferring in any way Clear-One’s trade secret Honeybee Code, as well as “product development documentation for the Honeybee Code or any other documentation that reveal[ed] the contents of the Honeybee Code.” Id. (internal quotation marks omitted). The injunction also prohibited the WideBand defendants from marketing, selling, manufacturing, developing, modifying, duplicating, transporting or delivering any technology that contained the Honeybee Code or any product that was substantially derived from the Honeybee Code. Id. at 745-46.

Continued contempt proceedings against Donald Bowers

“On April 28, 2009, the district court issued an order rescheduling for June 3, 2009, the show cause hearing regarding ... Bowers.” Bowers II, 651 F.3d at 1206. “In its order, the district court directed both ... Bowers and ... Frails to appear and testify by telephone at the June 3, 2009 hearing.” Id. Both men “appeared by telephone at the June 3, 2009 hearing.” Id. At the conclusion of the hearing, the district court “took the matter of ... Bowers’ contempt under advisement.” Id.

Three months later, on September 3, 2009, the district court issued a memorandum decision and order of contempt based on the evidence presented at the June 3, 2009 show cause hearing. Id. at 1207. The district court specifically found “Bowers in contempt for the post-verdict act of filing a UCC financing statement encumbering WideBand’s assets, as well as for failing to appear at the February 10, 2009 contempt hearing.” Id. “Based on these findings, the district court directed ... Bowers to take actions to assure the court that he had removed any encumbrances he had placed on WideBand’s assets and to pay Clear-One’s attorneys’ fees and costs associated with the contempt proceedings against him.” Id.

“On September 17, 2009, ... Bowers filed a personal Chapter 7 bankruptcy petition in Georgia.” Id. “The automatic stay entered in connection with the filing of that bankruptcy petition prevented Clear-One from collecting on the contempt judgment for fees and costs and prevented, for a period of time, the district court’s consideration of ClearOne’s subsequent allegations that ... Bowers was committing additional contemptuous acts.” Id.

Violation of the permanent injunction and issuance of a TRO

“On July 16, 2009, ClearOne moved to enforce the permanent injunction and for contempt.” Bowers I, 643 F.3d at 746-47. In support of its motion, ClearOne alleged that the defendants had transferred the assets of WideBand to a new, sham company called DialHD, Inc. (DialHD). Id. at 747. According to ClearOne, DialHD was registered to Bowers, was operating out of the same Connecticut office that Wide-Band previously occupied, and was continuing the same business as WideBand, including selling products that incorporated the Honeybee Code. M. ClearOne also alleged that the defendants, Bowers, “and WideBand employee David Sullivan ha[d] conspired and transferred, hidden, and claimed to destroy, the very Wide[B]and assets that th[e] Court ordered to be preserved in at least three orders, in addition to the Permanent Injunction.” Id. (internal quotation marks omitted) (brackets in original).

On July 17, 2009, the district court issued a show cause order directing the WideBand defendants, Bowers, DialHD, and David Sullivan to appear before the court on July 31, 2009. At the show cause hearing, the WideBand defendants and Bowers appeared on their own behalf by telephone. The district court heard testimony from three ClearOne witnesses and received exhibits submitted by ClearOne. At the conclusion of the hearing, the district court issued a TRO in favor of Clear-One.

On August 5, 2009, the district court issued a written TRO memorializing its findings and conclusions. The district court found that ClearOne had established a substantial likelihood of success on the merits of its claim that certain DialHD products illegally utilized the Honeybee Code. Id. at 747-48. Accordingly, the district court held that the DialHD infringing products would be subject to the same restrictions as set forth in the permanent injunction order regarding WideBand’s infringing products. Id. at 748. The district court also ordered Bowers and DialHD not to transfer, encumber, pledge, alienate, or try to dispose of or hide any DialHD assets until further order of the court. Id.

Violation of the TRO and issuance of a contempt order

“On October 22, 2009, ClearOne moved for an order to show cause for violation of the August 5, 2009 TRO.” Bowers II, 651 F.3d at 1207. ClearOne alleged in its motion that the WideBand defendants, DialHD, Sullivan and Bowers “had failed to remove from the market certain offending products, and that a sham Chinese company was utilizing the Honeybee Code to manufacture offending products for DialHD.” Id.

The district court held a hearing on' ClearOne’s motion on November 9, 2009. Id. Ten days later, on November 19, 2009, the district court issued an order finding Lonny Bowers, Yang, WideBand and DialHD in contempt of court for selling a WideBand offending product in the guise of two DialHD products, and that all of these products contained the Honeybee Code. Id. The district court’s order did not include Bowers because, at that time, the automatic stay issued in connection with his Chapter 7 bankruptcy proceedings had not yet been lifted.

The district court also, in pertinent part, (a) expanded its TRO and permanent injunction to include the offending DialHD products using the Honeybee Code, (b) directed DialHD and all those working in connection with it to immediately halt all development, sale and marketing of all DialHD products, including in China, and (c) directed the contemnors to arrange for delivery to ClearOne of all code and other design materials and intellectual property covered by the permanent injunction and TRO. Bowers I, 643 F.3d at 749.

Additional contempt proceedings

“On February 11, 2010, ClearOne filed an ex parte motion for the addition of ... Bowers to the district court’s November 19, 2009 contempt order and amended permanent injunction.” Id. ClearOne alleged in support “that on December 29, 2009, the bankruptcy court overseeing ... Bowers’ Chapter 7 bankruptcy proceedings ‘lifted the automatic stay, specifically to allow the contempt proceedings against ... Bowers to go forward.’ ” Id. (citation omitted). “The district court denied ClearOne’s motion, but issued a show cause order on April 7, 2010 directing ... Bowers to ‘appear personally or through counsel before the court on ... May 27, 2010[,] ... to show cause ... why he should not be held in contempt of the court’s’ August 5, 2009 TRO.” Id.

The district court held the scheduled show cause hearing on May 27, 2010. Id. Bowers appeared by counsel at the hearing, but did not personally attend. Id. The district court subsequently issued a memorandum decision and civil contempt order on August 13, 2010. Id. The district court found “Bowers ‘in contempt of court for his acts violating the court’s prohibition on possession, disclosure, use, marketing, or selling products containing ClearOne’s stolen trade secrets and the court’s prohibition on diversion of Defendant Wide-Band[’s] ... assets.’ ” Id. (citation omitted) “More specifically, the district court found that ... Bowers ‘surreptitiously re-pack-ag[ed] and s[old] products containing the stolen trade secret’ and ‘participated in the diversion of WideBand[’s] ... assets in an attempt to avoid the WideBand Defendants’ obligation to pay a multi-million dollar judgment to ClearOne.’ ” Id. (citation omitted). The district court also “found that ... Bowers ‘ha[d] committed fraud on the court by making false statements to the court and withholding material information from the court in a manner obstructing the court’s ability to enforce its orders and final judgment against the WideBand Defendants.’ ” Id. at 750 (citation omitted).

Based upon these findings, the district court (a) expanded its August 5, 2009 TRO to expressly include Bowers, (b) modified its amended permanent injunction to reflect these findings, (c) directed Bowers, and all those working in active concert or participation with him, to immediately halt all development, sales, and/or marketing of all DialHD products, including in China, (d) directed Bowers to deliver to ClearOne or its designated agent all code and other design materials and intellectual property covered by the amended permanent injunction, (e) directed Bowers to self-surrender to the court on October 13, 2010, for incarceration unless and until he proved that he had complied with the court’s directives, and (f) directed Bowers to pay ClearOne’s reasonable attorneys’ fees and costs in pursuing the contempt order against him. Id.

“On that same date, August 13, 2010, the district court also issued a second amended permanent injunction against all of the defendants in the case, as well as ... Bowers.” Id. The injunction prohibited Bowers and the defendants

from disclosing, using or transferring in any way the ... Honeybee Code (including its unique algorithms or sub-algorithms that [wejre not in the public domain), whether in the form of source code, object code, or any other form, and any code or product substantially derived from the Honeybee Code, as well as from disclosing, using, or transferring in any way the product development documentation for the Honeybee Code or any other documentation that re-vealfed] the contents of the Honeybee Code.

Id. (quotation marks omitted).

“On October 13, 2010, the district court held a hearing to determine whether ... Bowers ‘had purged himself of contempt by disclosing and providing [the] specified-information and infringing products.’ ” Id. (citation omitted). Bowers did not appear at the hearing despite being ordered to do so by the district court. At the conclusion of the hearing, “the district court found ‘that ... Bowers ha[d] not purged himself of contempt and [wa]s subject to arrest and incarceration in an attempt to coerce his compliance with the court’s Contempt Order.’ ” Id. (citation omitted). “Consequently, that same day the district court issued a bench warrant for ... Bowers for failure to appear before the court.” Id.

Bowers’ civil appeals

In Bowers I, Bowers challenged the district court’s exercise of personal jurisdiction over him. More specifically, he argued “that the district court could not have properly exerted personal jurisdiction over [hi]m at the July 31, 2009 contempt hearing because ClearOne had never filed ‘an actual complaint’ against [hi]m.” Id. at 775. This court rejected that argument, concluding that Bowers was “subject to the district court’s orders because [he] had actual notice of the. district court’s original permanent injunction and wa[s] found by the district court to have acted in concert with the WideBand defendants in violating that injunction.” Id. at 776.

In Bowers II, Bowers appealed from the district court’s contempt orders, arguing that the district court erred (1) in holding him in contempt of its injunctive orders, (2) in determining that it could exercise personal jurisdiction over him, (3) in directing him to appear in person at the July 31, 2009 show cause hearing, and in turn denying him the opportunity to present evidence and cross-examine ClearOne’s witnesses due to his failure to appear at that hearing, and (4) in refusing to recuse itself from the case filed by ClearOne. This court rejected Bowers’ arguments and affirmed the district court’s contempt orders. Bowers II, 651 F.3d at 1203, 1219.

Summary of the civil judgments entered against Donald Bowers

On April 21, 2010, the district court entered a civil judgment ordering Bowers to pay ClearOne $57,188.61 in attorneys’ fees. This judgment was the result of the district court’s September 3, 2009 order holding Bowers in civil contempt for violating its pretrial order enjoining the encumbrance or transfer of the Honeybee Code.

On December 8, 2011, the district court entered a civil judgment ordering Bowers to pay ClearOne costs and fees totaling $207,250.40 (of this amount, Bowers was personally liable for $22,743.88 and jointly and severally liable with other civil case defendants for $184,506.52). This judgment was the result of the district court’s August 13, 2010 order finding Bowers in civil contempt for his role in violating the permanent injunction prohibiting any further use of the Honeybee Code and products that unlawfully incorporated the Honeybee Code.

On May 13, 2013, the district court entered a civil judgment ordering Bowers to pay ClearOne $8,648 in appellate attorneys’ fees in connection with the appeal in Bowers I.

According to the record in this case, those judgments remain unpaid.

The criminal referral

On December 2, 2010, the district court judge who presided over the civil proceedings sent to the United States Attorney for the District of Utah a memo titled “Referral of Criminal Contempt Proceedings Against Lonny Bowers, Donald Bowers, and Jun Yang under Fed. R. Crim. P. 42.” Supp. ROA, Vol. 3 (Memo at-1). The memo outlined what had transpired in the civil case and asserted that the conduct of Bowers, Lonny and Yang had prevented the district court from providing effective relief to ClearOne and threatened to undermine the autonomy and effectiveness of the federal court system. The memo outlined the elements of a criminal contempt charge and expressed the district judge’s belief, that those elements were satisfied. Ultimately, however, the memo acknowledged that the decision whether to criminally prosecute the three individuals was a discretionary one to be made solely by the United States Attorney’s office.

II

The criminal proceedings at issue in this appeal were initiated on June 5, 2013, when a federal grand jury returned a four-count indictment against Bowers, Lonny Bowers, and Yang. As relevant to this appeal, Count 1 of the indictment charged all three defendants with willfully disobeying the district court’s April 2009 permanent injunction order, in violation of 18 U.S.C. § 401(3). Count 4 of the indictment charged Bowers with willfully disobeying the district court’s August 13, 2010 civil contempt order, also in violation of 18 U.S.C. § 401(3).

On March 13, 2015, Bowers, through counsel, filed a motion asking the district court to compel the government to provide him with “a copy of the criminal referral” made by the district court judge who presided over the civil proceedings. ROA, Vol. 4 at 81. On June 12, 2015, Bowers filed a similar pleading again seeking disclosure of the criminal referral. Bowers argued in that pleading that “the criminal referral [wa]s in the nature of a police report or written complaint and [he] [wajs entitled to a copy of that referral.” ROA, Vol. 5 at 74. Bowers also argued that “[d]ue process and fundamental fairness require[d] that [he] receive a copy of that referral.” I& The district court denied Bowers’ motions in an oral ruling issued on June 18, 2015. On July 13, 2015, the district court issued a written order memorializing its ruling.

The case proceeded to trial on September 21, 2015. The jury, after hearing three days of testimony, found Bowers guilty of Counts 1 and 4 as charged in the indictment.

On December 10, 2015, the district court sentenced Bowers to a term of imprisonment of fifteen months, to be followed by a three-year term of supervised release. The district court also ordered Bowers, as a condition of his term of supervised release, to make monthly payments to ClearOne on the outstanding civil judgments, with the monthly payment amount subject to review by the probation office.

The district court entered final judgment on January 11, 2016. The final judgment memorialized and effectively revised the special condition of supervised release imposed by the district court:

The defendant shall pay any civil obligations to ClearOne ... as ordered in civil case 2:07-cv-00037[-]TC at a minimum rate of $200 a month or as directed by the probation officer.

ROA, Yol. 6 at 584. Bowers filed a notice of appeal on January 12, 2016.

On March 28, 2016, the district court entered an amended judgment in order to remove an entry in the original judgment that erroneously directed Bowers to pay a certain amount of restitution to ClearOne. On April 1, 2016, Bowers filed an objection to the amended judgment, arguing for the first time that the district court lacked “jurisdiction to order [him] to pay obligations owed to Clear One stemming from civil case 2:07-cv-00037[-]TC, in that he was not a party to that case and that there [wa]s-no other basis to require [him] to pay the money ordered.” Supp. ROA, Vol. 1 at .1. Bowers asked the district court to delete this special condition of supervised release-from the amended judgment. Bowers also filed an amended notice of appeal on April 8, 2016.

On June 21, 2016, the district court issued an order overruling Bowers’ objection to the amended judgment. In its order, the district court noted that at the time of sentencing it “explained that ... Bowers would be required to pay down his civil judgment as a condition of his supervised release.” Supp. ROA, Vol. 2 at 1. The district court also noted that the probation office “received the specific amount relating to ... Bowers’ outstanding judgments owed to ClearOne based on his conduct during the [civil] litigation.” Id. Lastly, the district court, noted that it exercised its discretion to require Bowers “to pay those judgments, at the rate of $200 a month, as a special condition of supervised release,” and that “[t]his special condition did not involve a greater deprivation of liberty than reasonably necessary, ... was consistent with pertinent policy statements of the Sentencing Commission, and was reasonably related to the factors outlined in 18 U.S.C. §§ 3553(a) and 3583(d).” Id. at 2.

Ill

Bowers asserts three issues in this appeal. First, he argues that the district court' abused its discretion by ordering him, as 'a special condition of supervised release, to make monthly payments to ClearOne. Second, he argues that the district court abused its discretion by denying his motion to compel the government to disclose the criminal referral. Third, he argues that his sentence is illegal because 18 U.S.C. § 402 limits sentences for crimes such as those he committed to no more than six months. As we discuss in greater detail below, all of these issues lack merit.

Challenge to condition of supervised release

In his first issue on appeal, Bowers challenges the special condition of supervised release imposed by the district court that requires him to pay any civil obligations to ClearOne at a rate of $200 per month or as otherwise directed by his probation officer. According to Bowers, “it appears that the district court was under the mistaken belief that there was a ‘verdict’ and a judgment in the underlying civil case against Donald Bowers that he ‘needed to pay.’ ” Aplt. Br. at 20. Although Bowers concedes that it is “appropriate for a court to order, as part of a condition for supervised release, that a defendant make payments as ordered by another court,” he argues that “the problem here is that [he] was not a litigant in the underlying civil case and there was never any civil verdict or judgment against him.” Id. at 20-21. In sum, Bowers argues that he “was never a party to the [civil] matter, the court ordered no civil obligations to be paid by him, and therefore, it is inappropriate for the district court [in this case] to now order [him] ... to pay on a civil obligation for which he was not found liable or been otherwise ordered [to pay].” Id.

We review the imposition of a special condition of supervised release for an abuse of discretion. United States v. Munoz, 812 F.3d 809, 817 (10th Cir. 2016). Notably, we have held that “[district courts have broad discretion to impose special conditions of supervised release.” United States v. Bear, 769 F.3d 1221, 1226 (10th Cir. 2014). As we noted In Bear,

[t]he limits of that discretion are prescribed by 18 U.S.C. § 3583(d), which requires the conditions (1) be reasonably related to the nature and circumstances of the offense, the defendant’s history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, or the defendant’s educational, vocational, medical, or other correctional needs; (2) involve no greater deprivation of liberty than is reasonably necessary to achieve the purpose of deterring criminal activity, protecting the public, and promoting the defendant’s rehabilitation; and (3) be consistent with any pertinent policy statements issued by the Sentencing Commission.

Id.

The central premise of Bowers’ challenge to the special condition imposed upon him — that the district court in the civil action never ordered any civil obligations to be paid by him — is patently false. In fact, the district court in the civil action (Case No. 2:07-cv-00037-TC) entered three separate judgments against Bowers and in favor of ClearOne: (1) the April 21, 2010 judgment for $57,188.61; (2) the December 8, 2011 judgment for $207,250.40; and (3) the May 13, 2013 judgment for $8,648.00. The purpose of all three judgments was to direct Bowers to reimburse ClearOne for attorneys’ fees and costs expended in connection with the civil contempt proceedings and related appeal. All three of the judgments are now final and, according to the record on appeal, remain unpaid.

Moreover, we conclude that this special condition of supervised release otherwise satisfies the requirements of 18 U.S.C. § 3583(d). To begin with, the special condition is reasonably related to the nature and circumstances of Bowers’ offenses of conviction because it seeks to remedy the expenses that were incurred by ClearOne as a direct result of Bowers’ contemptuous conduct. It is also reasonably related to Bowers’ history and characteristics because the monthly amount directed to be paid was specifically tied to Bowers’ financial circumstances. And, we noté, it effectively affords the probation officer with discretion to review that amount as necessary. Further, the special condition does not impose any deprivation of liberty upon Bowers because it simply requires him to make payments on already existing legal obligations. See United States v. Mitchell, 429 F.3d 952, 952-53 (10th Cir. 2005) (“[B]ecause Ms. Mitchell was already legally obligated to pay the restitution from her previous convictions, the challenged condition of supervised release” requiring her to remain current on her restitution payments “is not a ‘deprivation of liberty.’ ”). Lastly, there is no assertion by Bowers that the special condition is inconsistent with any pertinent policy statements issued by the United States Sentencing Commission.

In sum, we conclude that the district court did not abuse its discretion in requiring Bowers, as a special condition of supervised release, to pay a set minimum monthly amount towards the judgments entered against him and in favor of Clear-One in the underlying civil action.

Denial of motion to disclose the criminal referral

In his second issue on appeal, Bowers challenges the district court’s denial of his motion to disclose the criminal referral. We review for abuse of discretion the denial of a motion for discovery in a criminal case. United States v. Apperson, 441 F.3d 1162, 1191 (10th Cir. 2006).

After examining the record on appeal, including the criminal referral filed under seal, we conclude that the district court did not abuse its discretion in denying Bowers’ motion to disclose the criminal referral. To begin with, nothing in the criminal referral rendered it discoverable under Federal Rule of Criminal Procedure 16. More specifically, the criminal referral did not include oral or written statements made by Bowers, reports of examinations or tests, or any expert witness testimony or opinions. Fed. R. Crim. P. 16(A), (B), (F), (G). Further, nothing therein was “material to preparing the defense,” used in the government’s case-in-chief, or “obtained from or belonged] to” Bowers. Fed. R. Crim. P. 16(E).

Nor did Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (requiring prosecution to disclose material exculpatory evidence to the defendant), or Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (holding that prosecution is obligated to disclose information bearing on a witness’s credibility where that evidence may be material to the defendant’s guilt or punishment) require disclosure of any part of the criminal referral. That is because nothing in the referral was exculpatory in nature, nor did anything therein concern the credibility of any witness who appeared at trial.

Finally, the Jencks Act, 18 U.S.C. § 3500, which requires the government to disclose to criminal defendants any statement made by a government witness that is in the possession of the United States once that witnesses has testified, is inapplicable. That is because the criminal referral contained only information from the district court judge who presided over the civil proceedings, and that judge did not testify as a witness at Bowers’ criminal trial.

In sum, nothing in the criminal referral rendered it discoverable by Bowers.

Legality of his sentence

In his appellate reply brief, Bowers argues for the first time that his fifteen-month term of imprisonment is “illegal” under 18 U.S.C. § 402. Aplt. Reply Br. at 3. Where, as here, “an appellant raises an issue for the first time in his reply brief, we generally deem it waived.” United States v. Henry, 839 F.3d 1271, 1275 n.1 (10th Cir. 2016); But see United States v. Courtney, 816 F.3d 681, 684 (10th Cir. 2016) (“[WJhen an error is obvious enough and satisfies Rule 52(b), an appellate court, in its discretion, may recognize the error notwithstanding briefing deficiencies.”).

Even if we were to exercise our discretion and review the issue under the plain error standard, it is clear that Bowers is not entitled to relief. As we have noted, Bowers was charged with and convicted of violating 18 U.S.C. § 401(3). That statute provides:

A court of the United States shall have the power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as—
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

Id. As the Seventh Circuit recently noted, one of the “unusual feature[s]” of § 401 is that it “carries no statutorily authorized maximum punishment.” United States v. Trudeau, 812 F.3d 578, 585 (7th Cir. 2016) (affirming ten-year term of imprisonment imposed for conviction under § 401(3)); see United States v. Halliday, 665 F.3d 1219, 1226 (10th Cir. 2011) (affirming ten-month term of imprisonment imposed for criminal contempt conviction under § 401 arising out of defendant’s refusal to testify before a grand jury); United States v. Voss, 82 F.3d 1521, 1527-28 (10th Cir. 1996) (affirming sentences ranging from twelve to twenty-four months’ imprisonment imposed on three defendants convicted of violating § 401(3) for refusing to produce subpoenaed documents). Notably, the revised presentence report (PSR) in this case properly advised Bowers of this fact and Bowers made no objection to the revised PSR. See ROA, Vol. .7 at 844 (stating that “18 U.S.C. § 401(3) does not contain a statutory maximum penalty”).

The statute that Bowers now cites in his appellate reply brief, § 402, is entitled “Contempts constituting crimes” and provides, in pertinent part:

Any person, corporation or association willfully disobeying any lawful writ, process, order, rule, decree, or command of any district court of the United States or any court of the District of Columbia, by doing any act or thing therein, or thereby forbidden, if the act or thing so done be of such character as to constitute also a criminal offense under any statute of the United States or under the laws of any State in which the act was committed, shall be prosecuted for such contempt as provided in section 3691 of this title and shall be punished by a fine under this title or imprisonment, or both.
Such fine shall be paid to the United States or to the complainant or other party injured by the act constituting the contempt, or may, where more than one is so damaged, be divided or apportioned among them as the court may direct, but in no case shall the fine to be paid to the United States exceed, in case the accused is a natural person, the sum of $1,000, nor shall such imprisonment exceed the term of six months.
This section shall not be construed to relate to contempts committed in the presence of the court, or so near thereto as to obstruct the administration of justice, nor to contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States, but the same, and all other cases of contempt not specifically embraced in this section may be punished in conformity to the prevailing usages at law.

18 U.S.C. § 402.

Bowers argues that § 402 “proscribes the penalties for contempts” and thus prohibited the district court in this case from sentencing him to a term of imprisonment greater than six months. Aplt. Reply Br. at 5. We disagree. By its plain language, § 402 governs only those acts of contempt that are “of such character as to constitute also a criminal offense under any statute of the United States or under the laws of any State in which the act was committed.” 18 U.S.C. § 402. This point is confirmed by the very last line of the statute, which states that “all other cases of contempt not specifically embraced in this section may be punished in conformity to the prevailing usages at law.” Id.

Bowers was not charged with or convicted of violating § 402, and there is no allegation that the acts of disobedience that he committed were “of such character as to constitute also a criminal offense under any statute of the United States or under the laws of any State.” Id. Instead, Bowers was charged with and convicted of violating § 401(B). All of which means that the penalty provisions of § 402 are inapplicable to Bowers’ case, and the district court was not otherwise bound by any statutory maximum sentence.

IV

The judgment of the district court is AFFIRMED.

      . The action was assigned the following case number: 2:07-cv-00037-TC.

      . ClearOne’s CEO, Zee Hakimoglu, appeared at the sentencing proceeding and gave a statement to the district court. In particular, Haki-moglu stated that Bowers had not returned the Honeybee Code to ClearOne and had not paid "a penny” to ClearOne on the outstanding judgments. ROA, Vol. 8 at 1080.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    IN RE: Julius Darius JONES, Movant.
    No. 17-6008
    United States Court of Appeals, Tenth Circuit.
    Filed February 10, 2017
    Before TYMKOVICH, Chief Judge, and KELLY, Circuit Judge.

      The Honorable Neil Gorsuch considered this Motion for Authorization originally, but did not participate in this Order. The practice of this court permits the remaining two panel judges, if in agreement, to act as a quorum in resolving this proceeding. See 28 U.S.C. § 46(d); United States v. Wiles, 106 F.3d 1516, 1516 n* (10th Cir. 1997) (quorum of panel judges may resolve an appeal) (collecting cases); In re Gibbs, 223 F.3d 312, 313 (5th Cir. 2000) (quorum of panel of judges may resolve a motion for authorization).

   ORDER

PER CURIAM.

Movant Julius Darius Jones, an Oklahoma prisoner proceeding through counsel, seeks an order authorizing him to file a second or successive capital habeas petition under 28 U.S.C. § 2254 so he may assert a claim for relief based on Hurst v. Florida, — U.S. -, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). See 28 U.S.C. § 2244(b)(3). To obtain authorization, Jones must make a prima facie showing that his claim meets the gatekeeping requirements of 28 U.S.C. § 2244(b). Id. § 2244(b)(3)(C); Case v. Hatch, 731 F.3d 1015, 1027-29 (10th Cir. 2013). Because Jones has not done so, we deny authorization.

Jones was convicted in 2002 of felony murder and sentenced to death. The judgment and sentence were affirmed on direct appeal in 2006, and his subsequent application for state post-conviction relief was denied. Jones filed a federal habeas petition in 2007 challenging his conviction and sentence on grounds of ineffective assistance of trial and appellate' counsel. The district court denied relief in 2013, and this court ultimately affirmed the denial in 2015. The Supreme Court denied certiorari in October 2016. Jones now seeks authorization to file a second § 2254 petition so that he can assert the following claim: his sentence of death violates the Fifth, Sixth, Eighth, and Fourteenth Amendments because the jury in his case was not instructed that it had to find beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating circumstances before it could impose a sentence of death.

We may authorize a successive claim when “the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2244(b)(2)(A). Jones contends that Hurst sets forth such a rule. He asserts that the Supreme Court in Hurst “announced, for the first time, that the weighing decision underlying a sentence of death, must be found by a jury beyond a reasonable doubt.” Mot. for Authorization at 2. And he contends that “Hurst also warrants retroactive application.” Id. at 3.

Assuming fQr the sake of argument that Hurst announced a new rule of constitutional law about the weighing decision, we turn to the question of retroactivity. Jones argues that “Hurst warrants retroactive application,” Mot. for Authorization at 3, because it fits an exception to the general rule against retroactive application of new procedural criminal rules set forth in Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Jones first contends that the new rule he identifies is a substantive rale of criminal law, which is entitled to retroactive application, Welch v. United States, — U.S. -, 136 S.Ct. 1257, 1264, 194 L.Ed.2d 387 (2016) (“[N]ew substantive rules generally apply retroactively.” (internal quotation marks omitted)). Alternatively, he argues that if it is a procedural rule, it is a watershed procedural rule, which is also entitled to retroactive application, id. (“[W]atershed rules of criminal procedure, which are procedural rules implicating the fundamental fairness and accuracy of the criminal proceeding, will also have retroactive effect.” (internal quotation marks omitted)).

But as we made clear in In re Gieswein, 802 F.3d 1143 (10th Cir. 2015) (per curiam), and Cannon v. Mullin, 297 F.3d 989 (10th Cir. 2002), whether, in our view, a new rule warrants retroactive application under Teague and its progeny is not the proper 'inquiry for purposes of § 2244(b)(2)’s gatekeeping requirements. Under § 2244(b)(2)(A), “the Supreme Court is the only entity that can ‘ma[k]e’ a new rule retroactive. The new rule becomes retroactive, not by the decisions of the lower court or by the combined action of the Supreme Court and the lower courts, but simply by the action of the Supreme Court.” Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). “[T]he only way [the Supreme Court] could make a rule retroactively applicable is through a ‘holding’ to that effect.” Cannon, 297 F.3d at 993 (10th Cir. 2002) (quoting Tyler, 533 U.S. at 663, 121 S.Ct. 2478); accord Gieswein, 802 F.3d at 1146. The Supreme Court has not held that its decision in Hurst is retroactively applicable to cases on collateral review.

Jones’s invitation to us to find Hurst retroactively applicable not only ignores our clear precedent in Cannon and Gies-wein, but relies on authority from the Seventh Circuit that we have explicitly rejected. “It is clear that the mere fact a new rule might fall within the general parameters of overarching retroactivity principles established by the Supreme Court (i.e., Teague) is not sufficient.” Cannon, 297 F.3d at 993. “[I]n the context of deciding a motion for authorization, it is not this court’s task to determine whether (or not) a new rule fits within one of the categories of rules that the Supreme Court has held apply retroactively. Our inquiry is statutorily limited to whether the Supreme Court has made the new rule retroactive to cases on collateral review.” Gieswein, 802 F.3d at 1146 (citation omitted).

Jones insists in his reply that Hurst announced a new rule of substantive law, which, by its very nature, is retroactively applicable. But the Supreme Court has not held that Hurst announced a substantive rule, and it is not our role to do so in the first instance in deciding a motion for authorization. As the Supreme Court explained in Tyler, it is unlikely that a court of appeals could decide within the thirty days allotted it under § 2244(b)(3)(D) whether a motion for authorization made the required prima facie showing “if [the court] had to do more than simply rely on Supreme Court holdings on retroactivity. The stringent time limit thus suggests that the courts of appeals do not have to engage in the difficult legal analysis that can be required to determine questions of ret-roactivity in the first instance.” 533 U.S. at 664, 121 S.Ct. 2478. Because the Supreme Court has not held its decision in Hurst to be retroactively applicable to cases on collateral review, Jones cannot meet the requirements of § 2244(b)(2)(A) necessary for authorization of his proposed claim.

The Motion for Authorization is therefore denied. This denial of authorization “shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E). The Federal Public Defender for the District of Arizona is appointed to represent Julius Darius Jones pursuant to 18 U.S.C. § 3006A(a)(2)(B) effective nunc pro tunc to the date the Motion for Authorization was filed in this court.

      . All references to pages within the Motion for Authorization and its attached exhibits are to the page number in the ECF header on the filed document.

      . To meet the gatekeeping requirements, Jones's claim also must not have been presented in an earlier federal habeas petition. See 28 U.S.C. § 2244(b)(1), (2). In its response to Jones's motion, the government argues that Jones has previously raised his proposed claim because in his first habeas petition he contended that his appellate counsel was ineffective for failing to argue that it was constitutional error for the trial court not to instruct the jury that its determination of whether the aggravating circumstances outweigh the mitigating circumstances must be found beyond a reasonable doubt. We need not decide whether, for purposes of § 2244(b), raising a claim of ineffective assistance of counsel based on an underlying constitutional error equates to raising a claim based on the underlying constitutional error itself, because we conclude that Jones’s claim does not otherwise meet the gatekeeping requirements.

      . Though he does not identify it as a Seventh Circuit case, Jones cites Price v. United States, 795 F.3d 731, 734 (7th Cir. 2015), as support for his statement that "[i]f a new rule is substantive in nature, the Supreme Court does not have to explicitly declare it to be retroactive because the general rule is that substantive rules should be given retroactive effect.” Mot. for Authorization at 4. We rejected Price's approach in Gieswein precisely because the Seventh Circuit decided for itself that the new rule at issue was substantive and therefore qualified for retroactive application under the Supreme Court’s general retroac-tivity principles. 802 F.3d at 1148. "Our sister circuit did what we have said we cannot do....” Id. Whether Jones’s failure to include the court designation in his citation to Price or to acknowledge our rejection of that decision was intentional or merely sloppy, neither is acceptable practice before this court.


author: JORDAN, Circuit Judge.

text:
    HILLSBOROUGH COUNTY, a political subdivision of the State of Florida, Jorge L. Dominguez, as Personal Representative of the Estate of Darcia Dominguez, Plaintiffs-Appellees, v. STAR INSURANCE COMPANY, a Michigan Corporation, Defendant-Appellant.
    No. 15-13701
    United States Court of Appeals, Eleventh Circuit.
    (February 3, 2017)

      Stephen Mark Todd, Hillsborough County Attorney’s Office, Tampa, FL, for Plaintiff-Appellee-Cross Appellant Hillsbor-ough County, a political subdivision of the State of Florida.
    Richard A. Harrison, Law Office of Richard A. Harrison, PA, Tampa, FL, for Plaintiff-Appellee-Cross Appellant Jorge L. Dominguez, as Personal Representative of the Estate of Darcia Dominguez.
    Walter J. Andrews, Washington, DC, Anna Price Lazarus, Miami, FL, Hunton & Williams, LLP, Ryan Stephen Burke, Mar-one Law Group, Lauren Stitt Curtis, Scot Samis, Traub Lieberman Straus & Shrewsberry, LLC, Saint Petersburg, FL, for Defendanb-Appellant-Cross Appellee.
    Before MARTIN and JORDAN, Circuit Judges, and COOGLER, District Judge.

       The Honorable L. Scott Coogler, United States District Judge for the Northern District of Alabama, sitting by designation.

   JORDAN, Circuit Judge.

Darcia Dominguez died from injuries sustained in an automobile accident with a Hillsborough County employee in February of 2010. Jorge Dominguez, the personal representative of Ms. Dominguez’s estate, filed a wrongful death suit against Hillsborough County in state court, and that action, as far as we know, is still pending. This federal diversity case involves an insurance dispute between the County, Mr. Dominguez, and Star Insurance, the County’s excess carrier.

We confront an issue of first impression under Florida law- — the interplay between the limited waiver of sovereign immunity set forth in Fla. Stat. § 768.28(5) and the language of the self-insured retention limit (SIRL) contained in an endorsement to the excess liability policy issued to the County by Star. One Florida appellate court has acknowledged a virtually identical issue but declined to resolve it given the case’s procedural posture. See State Nat’l. Ins. Co. v. Robert, 71 So.3d 238, 241 (Fla. 4th DCA 2011).

The question, as best as we can briefly explain it, is whether the County and Mr. Dominguez can settle the estate’s claim for the sum of $2.35 million — with the County paying its SIRL of $350,000 and Star purportedly paying the remaining $2 million (the policy limits) — without Star’s consent but subject to the Florida Legislature approving a special claims bill for the $150,000 “gap” between the $200,000 sovereign immunity cap established by § 768.28(5) and the $350,000 SIRL.

The district court, exercising diversity jurisdiction and ruling on cross-motions for summary judgment that the parties submitted without the benefit of discovery, held that any requirement that the Florida Legislature pass a claims bill for the “gap” amount before coverage is triggered under the policy frustrates the purpose of the County’s contract with Star. But it also ruled that the County cannot unilaterally settle the estate’s claim for an amount within the policy limits without Star’s consent. See D.E. 55 at 7-13. See also Hillsborough Cnty. v. Star Ins. Co., No. 8:14— CV-2067-T-EAJ, 2015 WL12765535 (M.D. Fla. June 24, 2015) (denying motion for reconsideration). In granting Mr. Dominguez’s motion for entry of judgment, the district court clarified that, in concluding that the County could not settle without Star’s consent, it necessarily ruled that, should Star consent, the County could satisfy its SIRL without a claims bill by the Legislature. See D.E. 82 at 3.

Two of the three parties before us are unhappy with the district court’s ruling. Star argues that the district court committed reversible error by ruling, pursuant to a frustration of purpose theory, that the requirement of a special claims bill is unenforceable. It also maintains that the County breached the terms of the policy by entering into a settlement without its consent. The County says that the district court did not go far enough, and asks us to hold that it does not need Star’s consent to settle the claim with the estate. Mr. Dominguez — who would be the other party to a settlement with the County — oddly calls for affirmance of the district court’s judgment, which would mean that — absent a jury verdict in his favor — he and the County need Star’s consent to consummate their settlement.

If this sounds like a mess, that is because it is.

I

We begin with the text of § 768.28(5) as it existed at the time of the deadly accident, because it provides the backdrop for the parties’ dispute. See Hattaway v. McMillian, 908 F.2d 1440, 1444 n.3 (11th Cir. 1990) (explaining that courts apply the Florida sovereign immunity provisions in effect at the time a cause of action accrues). We then turn to the language of the excess policy issued by Star, the case’s procedural history, the parties’ contentions, and the district court’s rulings.

A

In February of 2010, § 768.28(5) read in relevant part as follows:

The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or judgment by any one person which exceeds the sum of $100,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of $200,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $100,000 or $200,000, as the case may be; and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature. Notwithstanding the limited waiver of sovereign immunity provided herein, the state or an agency or subdivision thereof may agree, within the limits of insurance coverage provided, to settle a claim made or a judgment rendered against it without further action by the Legislature, but the state or agency or subdivision thereof shall not be deemed to have waived any defense of sovereign immunity or to have increased the limits of its liability as a result of obtaining insurance coverage for tortious acts in excess of the $100,000 or $200,000 waiver provided abovef]

(emphasis added).

The sentence in bold provides that any judgment or settlement above the sovereign immunity waiver is payable, in whole or in part, only through a special claims bill approved by the Florida Legislature. See Wallace v. Dean, 3 So.3d 1035, 1041 n.9 (Fla. 2009). The sentence in italics allows a municipality like the County to purchase liability insurance and to settle a claim within the limits of coverage (and above the stated sovereign immunity caps) without further action by the Legislature. See Mich. Millers Mut. Ins. Co. v. Bourke, 607 So.2d 418, 421-22 (Fla. 1992); Tramel v. Bass, 707 So.2d 847, 848 (Fla. 1st DCA 1998). But it also states that the purchase of insurance does not waive tbe defense of sovereign immunity.

B

The County purchased an excess liability insurance policy (including excess automobile coverage) from Star for the period spanning from October 1, 2009, to October 1, 2010. The policy, which cost the County $527,360, has a $2 million limit for each accident or occurrence, as well as a $350,000 SIRL. See Public Entity Excess Liability Policy, D.E. 18-1, at Declarations Page.

The policy states that Star will “pay all sums” that the County “legally must pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto.’ ” Id. at § II.A. It also provides that the County cannot assume any obligation, make any payment, or incur any expense “without [Star’s] consent, except at [the County’s] own cost,” and requires the County to cooperate with Star “in the investigation, settlement or defense of the claim or ‘suit.’ ” Id. at ■ § IV.A.2.b(l) & (3).

The SIRL endorsement, which applies to automobile excess coverage, states that the County, “[i]n consideration of the premium charged and as a condition to the issuance and continuation of the [p]olicy,” agrees to be responsible, “per occurrence,” for the first $350,000 in “allocated costs and expenses of investigation, defense, negotiation and settlement.” Id. at SIRL Endorsement, ¶ 1. Star’s “limit of liability [of $2 million per occurrence] shall apply solely in excess” of the County’s SIRL. Id.

Paragraph 4 of the SIRL endorsement provides that the County shall not incur any costs or expenses, “other than for immediate first aid to others, ... except at [its] own cost, ... without the written consent” of Star. Id. at ¶ 4. That same paragraph requires the County to provide an “adequate defense and investigation” of any action, and “accept any reasonable offer or settlement” within the $350,000 SIRL. Id. at ¶ 4.A-B. If the County fails to comply with any of the provisions of paragraph 4, Star “shall not be liable for any damages or costs or expensesf.]” Id. at ¶ 4.

C

Mr. Dominguez, in an attempt to have a Florida court determine the nature and extent of coverage under Star’s excess policy, asserted a declaratory judgment claim against the County and Star in his state-court wrongful death action. The state trial court denied Star’s motion to dismiss, but in June of 2014 the Second District granted Star’s petition for certiorari and reversed, holding that Mr. Dominguez — who was not an insured under Star’s excess policy — had not satisfied Florida’s non-joinder statute, Fla. Stat. § 627.4136(1), because he had not yet obtained a judgment against, or settled with, the County. See Star Ins. Co. v. Dominguez, 141 So.3d 690, 691-92 (Fla. 2d DCA 2014). So no Florida Court has addressed Star’s obligations under the policy.

In its amended complaint for declaratory relief in federal court, the County alleged (and Star admitted) that Ms. Dominguez had died as a result of injuries sustained in an automobile accident with a County employee (though the complaint was silent about who was at fault and Star said it was without knowledge as to the details of the accident); that Mr. Dominguez, as administrator of Ms. Dominguez’s estate, had filed a wrongful death action in state court; that the case was then set for trial in February of 2015; and that Star had issued a reservation of rights letter in July of 2014. See Am. Compl., D.E. 18, at ¶¶ 5, 15; Answer and Defenses, D.E. 28, at ¶¶ 5, 15. In its reservation of rights letter, which was attached to the amended complaint, Star took the position that it was only obligated to pay those sums that the County “legally must pay,” and that under § 768.28(5) the County had sovereign immunity for any sums over $200,000 absent an act of the Florida Legislature. Because the Florida Legislature had not taken any action (like passing a special claims bill) that would make the County liable for (or allow the County to pay) any claim over $200,000, and because the County had not exhausted (and could not yet exhaust) its $350,000 SIRL, Star asserted that its excess coverage under the policy had not been triggered. See Am. Compl., D.E. 18, Ex. 2.

The County also alleged in its amended complaint that the policy language prohibited it from settling Mr. Dominguez’s action for any amount exceeding its $350,000 SIRL without Star’s consent. It had asked Star for its consent to a settlement with Mr. Dominguez over the amount of $350,000, but Star had refused to agree. Star admitted both of these allegations. See Am. Compl., D.E. 18, at ¶¶ 16-17; Answer and Defenses, D.E. 28, at ¶¶ 16-17.

The amended complaint contained other significant factual allegations by the County, but Star denied those allegations in its answer. For example, the County alleged (and Star denied) that Mr. Dominguez had made a settlement demand on the County for an amount “far in excess” of the $350,000 SIRL. See Am. Compl., D.E. 18, at ¶ 19; Answer and Defenses, D.E. 28, at ¶ 19. It also alleged (and Star denied) that Star had “been made aware of the reasonable possibility of a verdict in the [wrongful death case] which far exceeds the amount of the coverage limits [in the policy].” See Am. Compl., D.E. 18, at ¶ 41; Answer and Defenses, D.E. 28, at ¶ 41.

The County asked that the district court interpret § 768.28(5) “as juxtaposed against” the language in Star’s excess policy. D.E. 18 at ¶ 12. The County requested a ruling that § 768.28(5) gave it statutory authority to settle the action filed by Mr. Dominguez within the limits of the excess policy without Star’s consent. Id. at ¶ 24. According to the County, such a settlement did not void the policy language because (a) if Star could “veto a settlement,” it “would be able to thwart the public policy favoring settlement of disputes,” and the language in § 768.28(5) allowing settlement of a claim within the limits of insurance coverage would have no effect; and (b) the policy language requiring that the County exhaust its $350,000 SIRL — an amount over the $200,000 sovereign immunity cap — constituted an “illusory, illegal condition” that was void as a matter of law. Id. at ¶ 26-28.

The County also argued that, contrary to Star’s position, there was no need for the Florida Legislature to pass a special claims bill in order to trigger excess coverage under the policy. According to the County, if Star’s position were upheld then coverage would only be triggered if Mr. Dominguez obtained a judgment over the $350,000 SIRL and if the Legislature then passed a special claims bill allowing the County to pay its SIRL of $350,000, which exceeds the $200,000 sovereign immunity cap. Id. at ¶ 35.

In its prayer for relief, the County asked the district court to declare that it was allowed to settle the claim by Mr. Dominguez for an amount over $350,000 but within the policy limits without Star’s consent and without a special claims bill by the Legislature; that such a settlement would not void the policy; that Star was required to pay the excess insurance amount set forth in the policy in satisfaction of the settlement; and that the policy language requiring the County’s payment of the SIRL was void and illusory and should be severed from the policy because § 768.28(5) precluded such a payment. Id. at 10.

D

In their joint case management report, the parties told the district court that the issues .presented were legal in nature and that as a result “no discovery [wa]s needed.” See D.E. 27 at 1. Those representations, as we later explain, would turn out to be mistaken.

About three weeks after the entry of the scheduling order, the County filed a motion for summary judgment. See D.E. 30. Attached to the motion were several letters which referred to a proposed settlement agreement “in principle” between Mr. Dominguez and the County. Neither the motion nor the letters set forth the precise terms of the proposed settlement, except to note that the County would, subject to Star’s consent, satisfy the $350,000 SIRL, and that the settlement was within the limits of Star’s excess policy. The County’s Board of Commissioners, according to the motion, would soon vote on the proposed settlement.

The County’s argument was short and to the point. Given the language of § 768.28(5), the County could settle Mr. Dominguez’s wrongful death claim within the limits of the excess policy without Star’s consent. Under Florida law, it argued, Star had to act in the County’s best interests and had to give “fair consideration” to the proposed settlement. The County broadly asserted that “Star has a legal duty to settle the [wrongful death action] for an amount within the policy limits,” and “has no valid authority, as a matter of law, to ‘veto’ a settlement to which the parties in [that action] have agreed.” But it failed to provide any evidence on critical factual issues such as who was at fault in the accident that took Ms. Dominguez’s life, why its own liability was likely or certain, what the damages were expected to be, or why the proposed settlement (the terms of which were still not specified) was reasonable.

Mr. Dominguez filed his own motion for summary judgment. See D.E. 37. Like the County, Mr. Dominguez argued that § 768.28(5) trumped the language in Star’s policy. But, unlike the County, Mr. Dominguez asserted that the statute allowed the County to settle his claim within the limits of the policy if it obtained a special claims bill from the Florida Legislature for the $150,000 “gap” between the $200,000 sovereign immunity cap and the $350,000 SIRL. Mr. Dominguez also claimed that the policy language Star was relying on (the “legally must pay” language) and the SIRL were at best ambiguous and should therefore be construed against Star. As Mr. Dominguez saw things, it was useless' for the County to have excess insurance if it could not use that insurance to settle a claim.

Star opposed the motions of the County and Mr. Dominguez and filed its own cross-motion for summary judgment. See D.E. 38, 50. Attached to Star’s summary judgment motion was an agenda item on the consent caléndar for a County Commission meeting scheduled for January 7, 2015. The item was a proposal to authorize the County Attorney’s Office to “propose” a $2.35 million settlement offer in the wrongful death action comprised of three payments: the County would pay $200,000 out of its self-insurance general liability fund; an additional $150,000 would be “paid by the County, if approved by the Legislature in a [cjlaims [b]ill”; and Star would pay $2 million. The staff recommendation for the consent item explained that, if Star rejected the proposed settlement, the case would be tried “to a verdict which the County Attorney’s Office projects, based on focus group studies, will exceed the amount of the- proposed settlement offer.” See D.E. 38, Ex. C, at 1. The background section of the agenda item noted that Star had refused to offer any policy proceeds and was likely “to veto the proposed settlement.” Id. at 2.

Star’s summary judgment motion, like the County’s, was devoid of evidence. It said nothing about the cause of deadly accident, the likelihood of the County’s liability, the calculation of damages, or the reasonableness of the proposed settlement.

In a supplemental filing, Star submitted the affidavit of Michael McNabb, the County’s risk and safety manager. In that affidavit, which had first been filed in a separate case in federal court, Mr. McNabb stated that he was familiar with the policies issued to the County by Star and by State National Insurance. Those policies, according to Mr. McNabb, had a $350,000 SIRL, and because of the SIRL “the County receivefd] a discount on the overall policy premium.” D.E. 52, Ex. 1, at ¶ 12.

According to Star, the district court had to enter summary judgment in its favor as a matter of law for a number of reasons. First, coverage under the excess policy is triggered only when the County is legally obligated to pay more than $350,000, and without a special claims bill from the Florida Legislature the County had no legal obligation to pay any sum over $200,000, including the $150,000 “gap” amount. In fact, the County had sovereign immunity for any amount over $200,000. Second, the County had not exhausted its $350,000 SIRL, and until it did so there was no coverage. Third, the County did not have a unilateral right to settle the case for the policy limits without Star’s consent. Fourth, the County had breached the policy by (a) failing to provide an adequate defense, (b) refusing to cooperate with Star, and (c) agreeing to make payments pursuant to the proposed settlement without Star’s consent. Aside from the agenda item, Star did not provide any evidence to support its contentions on the County’s alleged breaches.

E

The district court, after concluding that there was an actual case or controversy, granted in part and denied in part the parties’ three summary judgment motions. See D.E. 55. In so doing, it made two significant rulings.

First, the district court held that

a requirement that a legislative claims bill is passed before triggering the coverage provided by Star frustrates the purpose of the [policy] as such a requirement would prohibit the settlement of any tort claims brought against the County where the $200,000 sovereign immunity cap is applicable. As the passage of a claims bill is not within the County’s control and remains an uncertainty, the County in this case could never benefit from the coverage provided for in the [p]olicy. By paying $200,-000[ ] and agreeing to support a claims bill for $150,000[], the County has met the [SIRL] requirements of the Star [p]olicy in this action.

Id. at 11.

Second, the district court ruled that there was no conflict between the language of § 768.28(5) and provisions in the policy requiring that Star consent in writing “before it is liable under the policy.” And it declined to say whether the proposed settlement reached by the County without Star’s participation was reasonable or whether any of the parties had breached the terms of the policy. “These issues,” explained the court, “involve factual disputes and are not ripe for determination on the present record.” Id. at 12. ,

Star moved for reconsideration, arguing in part that the County had breached the terms of the policy by reaching a settlement without its consent. See D.E. 58. The district court rejected Star’s argument, noting that the County had conditioned the proposed settlement on Star’s consent. See Star Ins., 2015 WL 12765535, at *1. Star also claimed that it was entitled to judgment under the Florida Supreme Court’s decision in Plancher v. UCF Athletics Ass’n, Inc., 175 So.3d 724 (Fla. 2015), but the district court found that case distinguishable. See Star Ins., 2015 WL 12765535, at *2.

Mr. Dominguez subsequently moved for entry of judgment. He asserted that the district court’s orders had addressed each of the requests for declaratory relief, and noted that Star had not filed any counterclaim or sought any form of affirmative relief. As a result, there was nothing left to adjudicate. See D.E. 65. Star opposed this motion, arguing that it had affirmative defenses that needed to be addressed (such as the County’s alleged breaches) and that, according to the district court, fact issues remained to be resolved. See D.E. 78. Star specifically asked the court for the opportunity to conduct discovery, although it continued to assert that there are “no fact issues and discovery is not necessary.” Id. at 10.

The district court granted Mr. Dominguez’s motion for entry of judgment, ruling that Star’s affirmative defenses were not independent causes of action that sought affirmative relief. The court explained that, in concluding that the County could not settle without Star’s consent, it necessarily ruled that, should Star consent, the County could satisfy its SIRL without a special claims bill. See D.E. 82.

The final judgment declared that the policy’s $350,000 SIRL, “which exceeds the County’s sovereign immunity cap of $200,000, ... frustrates the purpose of the County’s insurance contract as the County cannot itself pass a legislative claims bill enabling it to satisfy its [SIRL], but [§ ] 768.28(5) does not provide the County a right to unilaterally settle a claim within the limits of its insurance policy without the agreement of [Star].” D.E. 83.

II

The district court’s summary judgment order is subject to de novo review. See, e.g., Ellis v. England, 432 F.3d 1321, 1325 (11th Cir. 2005). The same plenary standard applies to the district court’s interpretation of § 768.28(5) and reading of Star’s policy under Florida law. See Hegel v. First Liberty Ins. Corp., 778 F.3d 1214, 1219 (11th Cir. 2015).

A

We first address the district court’s ruling that the County, by agreeing to pay its sovereign immunity cap of $200,000, plus an additional $150,000, satisfied the policy’s $350,000 SIRL (and triggered Star’s coverage) without the need for a special claims bill from the Florida Legislature for the $150,000 “gap.” The district court relied on the frustration of purpose doctrine, but on this barren record its reliance was misplaced.

1

Under Florida law, “ ‘[frustration of purpose’ refers to that condition surrounding the contracting parties where one of the parties finds that the purpose for which [it] bargained, and which purposes were known to the other party, have been frustrated because of the failure of consideration or impossibility of performance by the other party.” Crown Ice Machine Leasing Co. v. Sam Senter Farms, Inc., 174 So.2d 614, 617 (Fla. 2d DCA 1965). The doctrine, however, has limits. For example, “if knowledge of the facts making performance impossible were available to the promisor, he cannot invoke them as a defense to performance.” Shore Inv. Co. v. Hotel Trinidad, Inc., 158 Fla. 682, 29 So.2d 696, 697 (1947). See also Ferguson v. Ferguson, 54 So.3d 553, 556 (Fla. 3d DCA 2011) (“Because of the central importance placed upon the enforceability of contracts in our culture, the defense of impossibility (and its cousins, impracticability and frustration of purpose) must be therefore applied with great caution if the contingency was foreseeable at the inception of the agreement.”); 1700 Rinehart, LLC v. Advance Am., 51 So.3d 535, 537-38 (Fla. 5th DCA 2010) (explaining that the lack of consideration/frustration of purpose doctrine “has no proper application in a case ... in which the particular potential obstacle was not only foreseen by the parties, but as to which they specifically bargained”); Home Design Ctr.—Joint Venture v. Cnty. Appliances of Naples, 563 So.2d 767, 769-70 (Fla. 2d DCA 1990) (noting that the “doctrines of impossibility of performance and commercial frustration of purpose ... should be employed with great caution if the relevant business risk was foreseeable at the inception of the agreement and could have been the subject of an express contractual agreement”).

It is true, as the district court observed, that the County cannot itself pass a special claims bill for the “gap” amount of $150,000 which would allow it to satisfy its SIRL and trigger coverage by Star under the excess policy. But that does not mean that the frustration of purpose doctrine dooms the $350,000 SIRL. Both the County and Star knew (or should have known) that, in 2009 and 2010, § 768.28(5) established a sovereign immunity cap of $200,000 for municipalities and other government entities. And both the County and Star knew that the $350,000 SIRL exceeded the $200,000 sovereign immunity cap. Because the County purchased excess insurance of $2 million, the parties were aware of (or certainly should have foreseen) a scenario where the County could be liable for an amount over $350,000, in which case the $150,000 “gap” amount, would have to be accounted for in some way or another (e.g., through the passage of a special claims bill).

Maybe the County and Star believed (or understood) things differently, but neither party submitted any evidence (aside from the affidavit of Mr. McNabb indicating that the $350,000 SIRL allows the County to receive a reduced premium) concerning their negotiations, their agreement to fix the SIRL at $350,000 as opposed to some other figure, or their understanding of how the policy provisions would operate given § 768.28(5) in a case like this one. Without such evidence, the district court should not have applied the frustration of purpose doctrine.

2

It is nevertheless possible that, despite the $350,000 SIRL, a special claims bill may not be required to trigger Star’s coverage under the excess policy. The last sentence of the February 2010 version of § 768.28(5) — the sentence italicized in our earlier block quote — reads as follows: “Notwithstanding the limited waiver of sovereign immunity provided herein, the state or an agency or subdivision thereof may agree, within the limits of insurance coverage provided, to settle a claim made or a judgment rendered against it without further action by the Legislature, but the state or agency or subdivision thereof shall not be deemed to have waived any defense of sovereign immunity or to have increased the limits of its liability as a result of obtaining insurance coverage for tortious acts in excess of the $100,000 or $200,000 waiver provided above[.]”

Maybe this sentence means that, when a government entity which has sovereign immunity purchases insurance, it can settle a claim within the limits of its insurance coverage without a special claims bill by the Legislature (i.e., “without further action by the Legislature”). In the words of the Fourth District, “the claims bill procedure was intended only as a means of securing additional recovery directly against the government, rather than a third-party, such as a liability insurer or insurance agent. Indeed, no claims bill [is] necessary if excess insurance [is] purchased and the [plaintiffs] f[i]nd it necessary to proceed directly against the excess carrier.” Martin v. Nat’l Union Fire Ins. Co., 616 So.2d 1143, 1145 (Fla. 4th DCA 1993) (involving the 1985 version of § 768.28 and addressing claim against insurance agents for failure to procure excess insurance for a government entity after trial resulted in judgment against entity exceeding the sovereign immunity caps).

As the Florida Supreme Court has put it, the “within the limits of insurance coverage provided” language, in § 768.28(5) “reflects that the [Legislature specifically recognized that the [sovereign immunity] limits under the statute were discretionary and could be increased if insurance coverage was provided.... [T]he [Legislature has determined that, in addition to allowing discretionary recovery through a legislative claims bill, the limits of the sovereign immunity statute may be exceeded when insurance coverage is available.” Mich. Millers, 607 So.2d at 422 (involving a settlement amount over the sovereign immunity cap). As a result, in at least some scenarios, a municipality’s excess insurer is not able to rely on the sovereign immunity of the municipality to avoid coverage. See id. (“We find that the immunity defense available under [§ ] 768.28 is not absolute within the meaning of the term ‘legally entitled to recover’ [in the uninsured motorist statute] so as to allow such a defense to be raised substantively by an insurance carrier.”). See also Traniel, 707 So.2d at 848 (explaining that § 768.28(5) “expressly permits governmental entities to settle claims up to the limit of liability insurance they may carry”).

On the other hand, maybe a special claims bill is needed for the $150,000 “gap” amount that must be satisfied as part of the County’s SIRL. Star cites to a footnote in Plancher, a case which involved the death of a college football player at a Florida university, to support this argument. In Plancher, the Florida Supreme Court held that the UCF Athletics Association was entitled to limited sovereign immunity under § 768.28(5). See Plancher, 175 So.3d at 727-29. In a footnote, the Florida Supreme Court rejected, as “without any merit,” the argument of the plaintiffs — who had obtained a judgment of $10 million against the UCF Athletics Association — that the Association’s liability insurer was “still responsible for the entire judgment amount.” See id. at 728 n.4. The Florida Supreme Court cited to Stuyvesant Ins. Co. v. Bournazian, 342 So.2d 471, 472 n.3 (Fla. 1976), and § 768.28(5) in the footnote, but did not mention, much less discuss, its prior decision in Michigan Millers. So it is unclear what effect, if any, Plancher has on Michigan Millers, particularly on the record we have here.

The uncertainty is all the greater because neither Michigan Millers nor Plancher appeared to involve an SIRL, like the one here, which exceeds the sovereign immunity cap. Moreover, § 768.28(5) says that by obtaining insurance a government entity does not waive the defense of sovereign immunity and does not increase the limits of liability. It is not at all clear what this language means in a case like this one.

Given the way this case was litigated and presented to the district court on summary judgment, we need not resolve this difficult issue. The settlement proposal approved by the Board of Commissioners states that it is subject to Star’s consent, and also provides that the $150,000 “gap” amount will be “paid by the County, if approved by the Legislature in a claims bill.” So, whether a special claims bill is or is not statutorily required before the County can pay the “gap” amount to satisfy its SIRL of $350,000, the proposed' settlement between the County and Mr. Hernandez anticipates the need for, and passage of, such a bill by the Legislature. It is not our place to rewrite the terms-of the proposed settlement so that we can address whether, under a certain set of facts, the County can pay the $150,000 “gap” amount (and trigger Star’s excess coverage) without a special claims bill. And we would be providing an impermissible advisory opinion if we addressed the interplay of § 768.28(5) and the SIRL on facts not before us.

B

The County argues that it does not need Star to agree to the proposed settlement, and asserts that it can settle with Mr. Dominguez for an amount within the policy limits without Star’s approval, because § 786.28(5) supersedes the consent requirement set forth in the policy. See Br. for Hillsborough County at 10-12. Like the district court, we reject this argument.

In relevant part, § 768.28(5) states that a government entity “may agree, within the limits of insurance coverage provided, to settle a claim in certain circumstances where there is insurance coverage, a government entity can settle a claim ... against it without further act of the [Legislature.” We recognize that, under Florida law, a contractual provision that is contrary to a statute may be invalid, see Freeman v. Am. Integrity Ins. Co. of Fla., 180 So.3d 1203, 1208 (Fla. 1st DCA 2015) (citing cases), but here there is no clash between § 768.28(5) and the policy’s consent requirement. Putting aside the issue of the need (or lack thereof) for a special claims bill, the statutory text quoted above does not conflict with (and therefore does not abrogate) a policy provision which requires that the insurer consent to any settlement within policy limits. First, the words “insurance coverage” in § 768.28(5) indicate that one must look to the terms of the policy to determine what is covered, and here the policy clearly requires that Star consent to any settlement that would trigger coverage. See Excess Liability Policy, D.E. 18-1, ' at § IV.A.2.b(l) & (3). Second, if the County’s position were correct, a government entity could, notwithstanding policy language requiring the insurer’s consent, unilaterally agree to settle a claim on terms that are unjustified or unreasonable, and thereby put the insurer—which has lost any say on the matter—on the hook.

This does not mean, however, that an insurer like Star can arbitrarily veto (or withhold its consent from) any settlement within policy limits so that it will not have to pay anything. Under Florida law, Star, as an excess insurer, has a duty of good faith to evaluate settlement proposals, and it cannot “arbitrarily reject a reasonable settlement offer.” N. Am. Van Lines, Inc. v. Lexington Ins. Co., 678 So.2d 1325, 1332 (Fla. 4th DCA 1996) (addressing the duties of primary and excess insurers with respect to settlement proposals).

Unfortunately, we cannot apply this good faith duty here, as we agree with the district court that a number of material factual issues are not ripe for resolution. The parties, for reasons known only to them, chose not to conduct discovery. As a result, they failed to present critical evidence to the district court with respect to the accident' and the proposed settlement. No one knows who (if anyone) was at fault in the accident that resulted in Ms. Dominguez’s death; or what reasonable inferences might be drawn on the issue of fault; or the age or earning capacity of Ms. Dominguez; or the way that likely damages under Florida wrongful death law were calculated by the County and Mr. Dominguez in arriving at their proposed settlement; or the reason the County feared (or expected) a judgment in excess of the $350,000 SIRL if the case were to go to trial. We could go on, but these examples are sufficient to make the point.

C

Possibly appreciating its predicament, Star says that the district court should have granted its belated motion for discovery. Reviewing for abuse of discretion, see Benson v. Tocco, Inc., 113 F.3d 1203, 1208 (11th Cir. 1997), we are not persuaded. The parties told the district court that they did not need discovery, and the court was entitled to rely on that representation. In addition, Star waited until the district court had denied its motion for reconsideration to request discovery. Finally, even when it requested discovery, Star told the district court that it still believed that discovery was not necessary.

Ill

The district court’s final judgment, and the summary judgment order on which it was based, are affirmed in part and vacated in part as follows: (1) We affirm the portions of the summary judgment order and final judgment which (a) declare that the County cannot unilaterally settle Mr. Dominguez’s claim within policy limits without Star’s consent, and (b) explain that other issues related to the proposed settlement are unripe for resolution on the current record; (2) We vacate the portion of the summary judgment order and the final judgment which declares that the $350,000 SIRL can be satisfied without the passage of a special claims bill. On this record, the district court’s reliance on the frustration of purpose doctrine was misplaced, and we have no basis to address the interplay between § 768.28(5) and the policy’s SIRL because the proposed settlement between the County and Mr. Dominguez anticipates the need for, and passage of, a special claims bill; and (8) We affirm the district court’s denial of Star’s belated motion for discovery.

The case is remanded to the district court with instructions to amend the final judgment in accordance with this opinion.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

      . In April of 2010, the Florida Legislature amended § 768.28(5) to increase the sovereign immunity caps to $200,000/$300,000 for claims arising on or after October 1, 2011. See 2010 Fla. Sess. Law Serv., Ch. 2010-26 (C.S.S.B. 2060), §§ 1-2. All references in this opinion to § 768.28(5), unless otherwise noted, are to the version in existence in February of 2010. Given the way this case was litigated in the district court, we assume that the County's sovereign immunity cap was $200,000.

      . Given our ruling, we need not consider the other arguments advanced by Star in opposition to the district court’s use of the frustration of purpose doctrine.

      . One Florida intermediate appellate court has suggested that under the post-1987 version of § 768.28(5), the liability of a government entity is limited to the sovereign immunity caps "regardless of whether [the entity] carried liability insurance in excess of those amounts.” City of Winter Haven v. Allen, 541 So.2d 128, 131 (Fla. 2d DCA 1989) (holding that 1987 version of § 768.28 could not be applied retroactively). But Allen was issued before Florida Supreme Court’s decision in Michigan Millers, so it is unclear what resonance this language still has.

      . For the same reason, Star cannot prevail on its contention that the district court erred by not reaching its arguments that the County breached the terms of the policy by failing to provide an adequate defense, refusing to cooperate, and agreeing to a settlement (a voluntary payment) without its consent. See Br. for Star Insurance at 34-40. Star did not present any evidence to the district court with respect to what the County did (or did not do) in investigating or litigating the deadly accident in the underlying state-court wrongful death suit. Nor did it present any evidence as to what cooperation or information the County failed to render or provide. With respect to Star’s contention that the proposed settlement violated the voluntary payments provision of the policy, the agenda item that Star presented to the district court stated that the proposal was subject to Star’s consent. If the proposal was ultimately subject to Star’s consent—a consent which has not been given—then there was no unilateral settlement that breached the policy. Star essentially admits as much in its brief. See Br. for Star Insurance at 28-34.

      . As to all other issues raised, we affirm without discussion.