                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                     February 16, 2005

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 04-10506



                           JILL MUNCY, et al.,

                                                                Plaintiffs,

                                  versus

                    CITY OF DALLAS, TEXAS, et al.,

                                                                Defendants.
                     ____________________________

                        ROBERT JACKSON, et al.,

                                                  Plaintiffs-Appellants,

                                  versus

                    CITY OF DALLAS, TEXAS, et al.,

                                                    Defendants-Appellees,



            Appeal from the United States District Court
                 for the Northern District of Texas
                   Civil Case No. 3:99-CV-2960-P;
                    Civil Case No. 3:00-CV-588-H


Before GARWOOD, JONES and STEWART, Circuit Judges.

PER CURIAM:*

           Robert Jackson (“Jackson”) and Willie Taylor (“Taylor”)

appeal from a post-judgment order by the district court entered



     *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
March 26,    2004,   instructing   that    certain   checks   held   in   its

registry be returned to the City of Dallas (“City”) instead of

disbursed to Jackson and Taylor. Jackson and Taylor argue that the

checks belonged to them because the City had voluntarily and

unconditionally paid Jackson and Taylor back pay from the date they

were removed from their chief-level positions (October 30, 1999) to

the date they were instructed to report to the City’s Police

Department for duty (August 15, 2001).         Thus, they maintain that

the checks were a gift to them from the City and that they never

relinquished their claim of ownership to the checks by depositing

them in the registry.        They also argue that this court has

jurisdiction to review a post-judgment order distributing funds

held in the district court’s registry.

                                   I.

                          Factual Background

            When Terrell Bolton was named Chief of Police of Dallas

in October, 1999, he immediately demoted several career officers

and replaced them.      Among the demoted officers were Jackson, a

twenty-seven year police veteran, and Taylor, an officer with

twenty-eight years of service.          Jackson retired from the Dallas

Police Department (“DPD”) rather than continue employment at the

reduced rank, and Taylor stayed on until March 27, 2001.             Jackson

and Taylor sued the City in March 2000 asserting substantive and




                                    2
procedural due process violations as well as state law claims for

breach of contract and wrongful termination.1

           On June 21, 2001, the City notified Jackson and Taylor by

letter that it was reinstating them to their former chief-level

positions.   On August 7 and August 13, 2001, the City sent letters

to Jackson and Taylor, respectively, requesting them to accept

their reinstatement by reporting for duty on August 15, 2001.

These letters also mention the back pay checks at issue here:

     If you do not report for duty on August 15, 2001, you
     will be deemed to have rejected your reinstatement, as
     well as all accompanying salary and benefits from
     August 15, forward, and to have affirmed your decision to
     remain on your retirement status from the City of Dallas.
     A check for your back pay will be sent to you shortly.

           Neither man reported for duty to the Dallas Police

Department on August 15, 2001.

           As   the   City   was   preparing   to   send   checks   to   the

plaintiffs for back pay, Jackson’s and Taylor’s attorneys were

considering how to manage this transaction.         They were ostensibly

concerned that acceptance of the checks at that time might imply

that they had released the City from liability.             Jackson’s and

Taylor’s attorneys initially requested the City to pay the sums

directly into the district court registry, but when the City

responded that Texas law required wages to be sent to employees,

Jackson’s and Taylor’s attorneys responded that the City officials



      1
            More factual details about this litigation can be found in this
court’s opinion Muncy v. City of Dallas, Tex., 335 F.3d 394 (5th Cir. 2003).

                                     3
should   “do   whatever    it   is   they   think    is    necessary   for   the

disposition of the funds.”

            On September 7, 2001 (three weeks after the date the

plaintiffs were requested to appear for work), the City sent checks

for back pay directly to Jackson and Taylor.2             On October 10, 2001,

the district court granted Jackson’s and Taylor’s Unopposed Motion

Regarding Back Pay, ordering that the checks tendered to Jackson

and Taylor by the City be held in the district court registry.               The

Order reads, in relevant part:

           ORDERED   that   Plaintiffs   tender    the   checks
      representing the back wages presented to them by
      Defendants to the District Clerk, so that such checks are
      held securely in the vault used to hold non-cash
      collateral . . . ; and it is, further,

           ORDERED that such checks be returned to Plaintiffs
      at the culmination of this litigation; and it is,
      further,

           ORDERED that the City of Dallas, a Defendant herein,
      honor such checks when they are returned to Plaintiffs,
      or replace them, upon conclusion of this litigation.

            Jackson’s and Taylor’s motion for this Order stated their

intent regarding this registry deposit:

      In the event that Plaintiffs succeed on their claims
      herein, these funds can certainly be used to partially
      satisfy Defendants’ judgment obligations.         In the
      unlikely event that Plaintiffs are not successful herein,
      Plaintiffs will still be entitled to the funds Defendants
      have voluntarily paid to them because of the claimed
      “reinstatements.” After all, Defendants will hardly be


      2
            According to the City, the checks for Jackson (totaling $145,389.38)
and for Taylor (totaling $51,297.50) covered salary from October 31, 1999 (when
the men were fired by Chief Bolton), through August 14, 2001 (the day before they
were requested to report for duty).

                                       4
      able to claim, if they are ultimately successful, that
      they “didn’t really reinstate Plaintiffs” and “didn’t
      really make them whole.” Thus, in either scenario, the
      funds should at some point belong to Plaintiffs.

            On November 19, 2001, the district court granted summary

judgment for the City on all federal and state law claims, finding

that Jackson     and    Taylor   lacked     a   property   interest    in    their

executive positions with the DPD and thus the City was not liable

for   wrongful   discharge.       See   Muncy     v.   City   of   Dallas,   Nos.

3:99-CV-2960-P, 3:00-CV-588-H, 2001 WL 1480770, at *1 (N.D. Tex.

Nov. 19, 2001).        Jackson and Taylor appealed, and in June 2003,

this court affirmed the judgment of the district court.               See Muncy

v. City of Dallas, Tex., 335 F.3d 394 (5th Cir. 2003).                 The City

did not cross-appeal the Order requiring it to return the funds at

the conclusion of the litigation. Both opinions focused on whether

the positions constituted “property” within the meaning of the

Fourteenth Amendment, and neither opinion analyzed the legal or

factual issues pertaining to the back pay checks.3

            Following this court’s affirmance of summary judgment,

the City, on August 7, 2003, filed a Motion to Determine Status of

Checks.    This appears to be the first time that the City claimed

that the checks ought to be returned.            The district court entered


      3
            Regarding the checks, the district court Memorandum Opinion and Order
stated in its facts section: “Both Taylor and Jackson have refused to accept
their reinstatements, rejecting the checks offered by the City, and refusing to
return to employment with the City.” Muncy, 2001 WL 1480770, at *1. This court
said basically the same thing: “They have not returned to their jobs, nor have
they accepted checks tendered by the City for back pay and pension
contributions.” Muncy, 335 F.3d at 397.

                                        5
the March 26, 2004, Order, instructing that the funds be returned

to the City instead of disbursed to Jackson and Taylor.   Reaching

this conclusion, the district court principally relied on the

following observation:

     [T]he record is clear that the Plaintiffs separately
     chose not to accept the checks tendered to them as well.
     Concerned that acceptance of the checks would somehow
     lessen any damages they might recover against the City,
     the Plaintiffs chose not to accept the checks and,
     instead, chose to pursue this litigation. . . . Now
     that they have ultimately been unsuccessful in their
     litigation, Plaintiffs cannot reverse course and claim
     entitlement to the same checks which they had previously
     rejected.

          Jackson and Taylor appeal this post-judgment order.

                                 II.

          A.   Appellate Jurisdiction

          The City argues that the post-judgment order is not a

reviewable “final order” because it was administrative only and

merely implemented the district court’s summary judgment order.

Stated differently, the post-judgment order does not resolve any

new factual or legal issues that were left unaddressed by the

district court’s summary judgment order that determined that the

City was not liable to Jackson and Taylor.   According to the City,

the district court’s March 26, 2004, disbursement order is a

“reiteration” of the November 19, 2001, summary judgment order.

          The City correctly states the law concerning appeals of

post-judgment orders but incorrectly applies it to the circum-

stances of this case.    A mere ministerial order (such as an order


                                  6
executing a judgment) is not a final appealable order.                This

conclusion flows from the general principle that an appeal from a

post-judgment order should not function as a second appeal of the

judgment.    Very often, an order to disburse funds from the court

registry will be “ministerial” in this sense that the order simply

executes the decision explicitly reached in the final judgment.

            Where, on the other hand, a post-judgment order resolves

important questions that arise after a final judgment, appellate

review is available to test the trial court’s disposition.           In re

Farmers’ Loan & Trust Co., 129 U.S. 206, 213, 9 S.Ct. 265, 266

(1889)   (explaining   that   most   trial   court   decisions   resolving

important, but ancillary, matters that arise after the entry of

judgment are final decisions permitting appellate review); 15B

Charles A. Wright, Arthur R. Miller, Edward H. Cooper, Federal

Practice and Procedure § 3916 (2d ed. 1992) (“[O]nce the original

trial proceedings have been completed, final judgment appeal should

be available upon conclusion of most post-judgment proceedings.”).

            Here, the March 26, 2004, disbursement order addressed a

question left unresolved by the final judgment issued more than

three years earlier.     The district court’s November 2001 final

judgment involved the merits of the underlying federal and state

law claims but did not determine the ownership of the deposited

back pay checks.   In context, the statement from the November 2001

final judgment that Jackson and Taylor “take nothing of their

claims against defendants” referred to the federal and state law

                                     7
claims asserted in the complaint and did not resolve the important

question of which party owned the deposited checks.                   Thus, the

post-judgment order transferring the checks to the City concluded

a discrete proceeding and is appealable.

          B.     Entitlement to the Checks

          Pursuant   to    Rule   67   of    the    Federal   Rules   of   Civil

Procedure, a party may deposit a sum of money with the court

whether or not that party claims an interest in the fund or thing

deposited.     FED. R. CIV. P. 67.         The purpose of Rule 67 is “to

relieve the depositor of responsibility for a fund in dispute.” 12

Wright, Miller & Cooper, supra, § 2991.            Once funds are deposited,

the court should determine ownership and make disbursements.               Gulf

States Utils. Co. v. Alabama Power Co., 824 F.2d 1465, 1474 (5th

Cir. 1987).    A post-judgment order disbursing funds held in the

registry of the district court is reviewed under the abuse of

discretion standard.

          Jackson    and   Taylor      argue   that     the   district     court

incorrectly concluded that their deposit of the checks into the

registry constituted a rejection of them.                We agree with the

plaintiffs that their conduct with respect to the checks cannot

properly be construed as a rejection.              Rather than rejecting the

funds, Jackson and Taylor took pains to have them safely kept in

the district court’s registry until resolution of the underlying

dispute. Jackson and Taylor accepted the checks by depositing them



                                       8
in the registry with the request that they be returned at the

conclusion of litigation.

            In their unopposed motion depositing the checks in the

registry, Johnson and Taylor stated that they regarded the checks

as a voluntary and unconditional transfer to them.                   They also

expressed their understanding that acceptance of the checks was a

separate issue from acceptance of the reinstatement of employment

from August 15, 2001, forward.4              They further declared their

expectation to receive the checks back from the district court at

the conclusion of litigation, stating that “in either scenario

[success or failure of the underlying causes of action], the funds

should at some point belong to Plaintiffs.”             The district court’s

order, quoted above, adopts plaintiffs’ position explicitly.               Yet,

the City never appealed this Order.

            The City fails in arguing that this court’s prior opinion

establishes the “law of the case” foreclosing recovery for Jackson


      4
            Jackson and Taylor have sent mixed signals on this point at
subsequent stages of litigation.    In later proceedings, Jackson and Taylor
indicated that they considered the checks and the City’s reinstatement of them
to be tied together and that acceptance of one was conditioned on acceptance of
the other. In fact, in one pleading before the district court, Jackson and
Taylor made the statement:

      [T]he City of Dallas attempted to unilaterally “reinstate” Jackson
      and Taylor to their former positions during the pendency of this
      litigation and in connection therewith, paid them monies
      representing “back wages.” Plaintiffs did not accept payment of
      these “back wages . . . .”

It is significant, however, that this was not the understanding of matters
expressed in Jackson and Taylor’s original motion depositing the checks.
Plaintiffs’ motion and the district court order both contemplated that the checks
would be returned to Jackson and Taylor at the termination of the litigation,
regardless of the decision on the merits of the wrongful discharge claims.

                                       9
and Taylor.       Although the opinions of both the district court and

this court stated that Jackson and Taylor had “rejected” or “not

accepted” the checks, those factual observations were not pertinent

to the issue resolved in those proceedings — whether Jackson and

Taylor held a property right in their jobs that would entitle them

to due process.          See White v. Murtha, 377 F.2d 428, 431 (5th Cir.

1967)    (stating    that     the     law-of-the-case        doctrine   applies   to

questions previously litigated and decided);                  18B Wright, Miller &

Cooper, supra, § 4478 (describing how the discretionary law-of-the-

case doctrine does not reach a matter stated in dicta that was not

presented for decision and was not decided).                  In fact, by failing

to cross-appeal this issue in its first trip to this court, the

City (inadvertently) allowed the district court’s Order concerning

the registry to become a final judgment.

                                         III.

            Having ordered at the time of deposit that Jackson and

Taylor    would     be     returned    the     checks   at    the   conclusion    of

litigation, the district court abused its discretion by disbursing

the funds to the City.         For the foregoing reasons, we REVERSE the

March 26, 2004, Order and instruct the district court to disburse

the funds to Jackson and Taylor.




                                          10
