FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MANUEL DE JESUS ORTEGA 

MELENDRES; DAVID 

RODRIGUEZ; VELIA MERAZ; 

MANUEL NIETO, Jr.; SOMOS 

AMERICA, 

Plaintiffs-Appellees, 

UNITED STATES OF AMERICA, 

Intervenor-PlaintiffAppellee, 

 v. 

RUSS SKINNER, in his official 

capacity as Sheriff of Maricopa 

County, 

Defendant-Appellant.

No. 23-15036 

D.C. No. 2:07-cv02513-GMS 

OPINION

Appeal from the United States District Court

for the District of Arizona

G. Murray Snow, Chief District Judge, Presiding

Argued and Submitted March 20, 2024

San Francisco, California
2 MELENDRES V. SKINNER

Filed August 19, 2024 

Before: J. Clifford Wallace, Susan P. Graber, and Marsha 

S. Berzon, Circuit Judges. 

Opinion by Judge Wallace 

SUMMARY*

Injunction / Court-Appointed Monitor

The panel affirmed the district court’s amended third 

supplemental permanent injunction in plaintiffs’ class action 

alleging that the Maricopa County Sheriff’s Office (MCSO) 

racially profiled Latino drivers and passengers under the 

guise of immigration enforcement. 

The district court issued a permanent injunction against 

MCSO in 2013, and several months later issued a 

supplemental permanent injunction (First Order) appointing 

an independent monitor (Monitor) responsible for 

monitoring and assessing MCSO’s compliance with the 

injunction. In 2016, the district court issued a second 

supplemental permanent injunction (Second Order) 

requiring the Maricopa County Sheriff and MCSO to reform 

MCSO’s internal misconduct investigation procedures. In 

2022, the district court issued a third supplemental 

permanent injunction (Third Order), finding the Sheriff in 

contempt for non-compliance with the Second Order and 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
MELENDRES V. SKINNER 3

setting forth curative measures, including creating a 

Constitutional Policing Authority (CPA) and assigning to 

the Monitor the CPA’s duties.

The panel held that the district court relied on its inherent 

equitable powers rather than Fed. R. Civ. P. 53 in issuing the 

Third Order, and therefore Rule 53’s limits, if any, do not 

apply.

The panel rejected the Sheriff’s contention that the 

district court’s delineation and assignment of the CPA’s 

duties to the Monitor violated Article III of the Constitution 

and separation of powers principles. First, the district court 

acted within the general bounds of its inherent powers. In 

certain circumstances, the district court, relying on its 

inherent powers, may vest a non-judicial officer with control 

over narrow areas of a governmental defendant’s 

operations. Second, the panel held that Paragraphs 346, 347, 

and 350 of the Third Order do not impermissibly omit a 

mechanism for judicial review of the Monitor’s actions 

because the First Order provides for adequate judicial 

review.

Finally, the panel held that Paragraphs 346, 347, and 350 

do not contravene Fed. R. Civ. P. 65’s requirement that an 

injunction must state its terms specifically and describe in 

reasonable detail the act or acts restrained or required.
4 MELENDRES V. SKINNER

COUNSEL

Amy S. Heath (argued), Covington & Burling LLP, San 

Francisco, California; Stanley Young, Covington & Burling 

LLP, Palo Alto, California; Natasha Babazadeh (argued) and 

Elizabeth Hecker, Attorneys, Civil Rights Division, 

Appellate Section; Kristen Clarke, Assistant Attorney 

General; United States Department of Justice, Washington, 

D.C.; Victoria A. Lopez and Christine K. Wee, ACLU 

Foundation, Phoenix, Arizona; Cecillia D. Wang, ACLU 

Foundation, San Francisco, California; for PlaintiffsAppellees.

Eric M. Fraser (argued), Brandon T. Delgado, Joshua J. 

Messer, Mary O'Grady, and Kristin L. Windtberg, Osborn 

Maledon PA, Phoenix, Arizona; for Defendant-Appellant.

Gregory C. Champagne and Maurice E. Bostick, St. Charles 

Parish Sheriff's Office, Luling, Louisiana, for Amici Curiae 

National Sheriffs’ Association and Western States Sheriffs’ 

Association.
MELENDRES V. SKINNER 5 

OPINION

WALLACE, Circuit Judge: 

This appeal relates to a matter with which we are all too 

familiar, a class action alleging that the Maricopa County 

Sheriff’s Office (MCSO) racially profiled Latino drivers and 

passengers under the guise of immigration enforcement. 

Since 2012, we have resolved four appeals arising from this 

case. See Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) 

(Melendres I); Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 

2015) (Melendres II); Melendres v. Maricopa County, 815 

F.3d 645 (9th Cir. 2016) (Melendres III); Melendres v. 

Maricopa County, 897 F.3d 1217 (9th Cir. 2018) (Melendres 

IV). Current Maricopa County Sheriff Russ Skinner 

(Sheriff) asks us to do so a fifth time by appealing from 

certain provisions of the district court’s amended third 

supplemental permanent injunction (Third Order). We have 

jurisdiction under 28 U.S.C. § 1291(a), and we affirm.

I.

The facts of this case span more than a decade and a half 

and are detailed in our prior related opinions.

1 We recount 

only the facts relevant to the arguments made in the present 

appeal.

Plaintiffs filed a class action against former Maricopa 

County Sheriff Joseph Arpaio in his official capacity, 

alleging in relevant part that, while claiming to be enforcing 

federal immigration laws, MCSO engaged in a widespread 

practice of conducting racially discriminatory traffic stops 

1 See Melendres IV, 897 F.3d at 1219–20; Melendres III, 815 F.3d at 648; 

Melendres II, 784 F.3d at 1258–60; Melendres I, 695 F.3d at 994–96. 
6 MELENDRES V. SKINNER

and “crime suppression sweeps” targeting Latinos.

Plaintiffs sought declaratory and injunctive relief to enforce 

their rights under the Fourth and Fourteenth Amendments. 

In 2011, the district court preliminarily enjoined MCSO 

“from detaining any person based only on knowledge or 

reasonable belief, without more, that the person is 

unlawfully present within the United States.” The court 

made that preliminary injunction permanent in 2013 after

conducting a bench trial in which it found that MCSO had 

violated Plaintiffs’ constitutional rights. 

Several months later, the district court issued a 

supplemental permanent injunction (First Order), which 

inter alia appointed an independent monitor (Monitor) who 

is responsible for monitoring and assessing MCSO’s 

compliance with the injunction.

2 One duty assigned to the 

Monitor was to review MCSO’s “policies, procedures, 

protocols or other materials,” and to make 

“recommendations to the Parties regarding measures 

necessary to ensure timely, Full and Effective Compliance 

with [the First] Order and its underlying objectives.” 

Pursuant to the First Order, the Monitor was “subject to the 

supervision and orders of the Court.” The First Order 

expressly provided that “[i]n any areas where the Parties are 

not able to resolve issues with the Monitor . . . the Parties 

may submit their grievances directly to the Court for 

resolution.” In that same paragraph, the First Order 

underscored that the “ultimate arbiter of compliance is the 

Court.” In total, the First Order contained 159 sequentially 

numbered paragraphs. 

2 By separate order, the district court appointed Robert Warshaw of 

Warshaw and Associates, Inc. to be the Monitor. 
MELENDRES V. SKINNER 7

In early 2015, Plaintiffs sought to have the district court 

hold Sheriff Arpaio and others in civil contempt, in part 

because Arpaio and MCSO “continued to detain persons 

solely based on unlawful presence in direct violation of the 

Court’s order.” At that point, the federal government 

(United States) sought, and was granted permission, to 

intervene in the case; its expressed concern was Sheriff 

Arpaio’s and MCSO’s “intransigence and contempt of the 

remedial order.”3 After holding twenty-one days of 

evidentiary hearings, the court found Sheriff Arpaio in civil 

contempt for “knowingly and intentionally” failing to 

implement the preliminary injunction. The court also found 

that “Sheriff Arpaio and MCSO manipulated all aspects of 

the internal affairs process to minimize or entirely avoid 

imposing discipline on MCSO deputies and command staff

whose actions violated the rights of the Plaintiff class.”

As a remedy, the district court in July 2016 issued a 

second amended supplemental permanent injunction 

(Second Order) requiring Sheriff Arpaio and MCSO to 

reform MCSO’s internal misconduct investigation 

procedures. Among other remedial measures, the Second 

Order required that MCSO complete internal investigations 

within a certain amount of time after initiating them. The 

district court also ordered Sheriff Arpaio to conduct a 

comprehensive review of MCSO’s policies, procedures, and 

other written materials governing internal investigations, 

and expanded the Monitor’s oversight and assessment into 

various internal investigation processes. The Second Order 

stated that the Monitor was to review and approve “[a]ll

3 The United States intervened pursuant to Federal Rule of Civil 

Procedure 24(a)(1) and the statutory authority provided under section 

902 of the Civil Rights Act of 1994, 42 U.S.C § 2000h-2. 
8 MELENDRES V. SKINNER

policies, procedures, protocols, training materials, and other 

material required by” the Second Order according to “the 

same process of review and comment by the parties and 

approval by the Monitor described in” the First Order. The 

Second Order’s 177 paragraphs were “numbered 

consecutively to those set forth” in the First Order, which 

were “incorporated herewith.” 

In March 2021, Plaintiffs and the United States jointly 

requested an order to show cause and asked the district court 

to initiate civil contempt proceedings against then-Sheriff 

Paul Penzone and MCSO, alleging that MCSO was still not 

conducting fair investigations in a timely fashion and had 

allowed “the backlog of open misconduct cases to grow

exponentially over the last five years.” After the district 

court indicated that it would likely hold Sheriff Penzone in 

civil contempt, the parties agreed to focus on how to remedy 

MCSO’s non-compliance with the Second Order.

To assist in the amelioration efforts, the court’s 

management expert recommended appointment of a

Constitutional Policing Advisor to streamline MCSO’s 

internal investigations process.4 As an alternative to 

appointing a new individual to this role, the management 

expert suggested that the Monitor could assume the duties of 

the Constitutional Policing Advisor. The management 

expert also recommended that the backlog in internal 

investigations could be reduced by giving MCSO broader 

discretion in handling misconduct complaints and in using

4 The management expert, who is distinct from the Monitor, was 

appointed by the district court to “provide the Court with 

recommendations on how best the Maricopa County Sheriff’s Office can 

. . . come into compliance with the Court’s order pertaining to the time 

limits for completing internal investigations . . . .”
MELENDRES V. SKINNER 9

those complaints to identify potential deficiencies in 

training, policy, supervision, and guidance. At the same 

time, the management expert acknowledged that MCSO may 

not be the right entity to exercise such discretion, given its

history of deliberate non-compliance with court orders. 

In October 2022, the district court issued a draft third 

supplemental permanent injunction, finding Sheriff Penzone 

in civil contempt for non-compliance with the Second Order 

and setting forth curative measures, which in part modified

the Second Order. The draft order, in relevant part, created 

a Constitutional Policing Authority (CPA) and assigned to 

the Monitor the CPA’s duties, including: (1) “oversee[ing] 

all of MCSO’s complaint intake and routing”; (2) “revis[ing] 

and/or formaliz[ing] MCSO’s intake and routing processes”; 

and (3) “determin[ing] whether training on investigative 

planning and supervision is needed and implementing such 

training.”5 

Shortly after the district court issued the draft order, 

Sheriff Penzone filed objections. Pertinent to this appeal, 

Sheriff Penzone objected to the court’s “broad grant of 

authority” to the Monitor acting as CPA over complaint

intake and routing, and he requested that the Monitor’s 

authority be limited, consistent with the policies and 

procedures established in other paragraphs of the Third 

Order. Sheriff Penzone made no objections related to the 

Monitor’s grant of authority over training on investigative 

planning and supervision. 

5 The district court, unlike the management expert, referred to a 

Constitutional Policing Authority rather than a Constitutional Policing 

Advisor. 
10 MELENDRES V. SKINNER

In November 2022, the district court issued the Third 

Order, holding Sheriff Penzone in civil contempt for noncompliance with two provisions in the Second Order related 

to hiring sufficient trained personnel and completing internal 

investigations within the prescribed deadlines. The Third 

Order stated that, although Sheriff Penzone had attempted to 

address the backlog, the problem had only gotten worse. The

court observed that MCSO had 2,137 pending investigations 

and that the timeline to complete an investigation had grown 

to approximately 600 days per investigation. The Third 

Order provided remedies largely consistent with the draft 

order, including the assignment to the Monitor of additional 

duties and responsibilities as CPA. Those duties concerned

complaint intake, complaint routing, and training for

investigative planning and supervision. These remedies, 

detailed in thirty new paragraphs, were “numbered as to 

continue from the numbered paragraphs” in the Second 

Order. 

At issue in this appeal are the following three paragraphs 

of the Third Order:

346. The Court hereby vests the Monitor, 

Robert Warshaw, with the supplemental 

authorities set forth in this Order. The 

Monitor therefore has immediate 

authority to oversee all of MCSO’s 

complaint intake and routing. The Court 

hereby vacates any previous order that 

conflicts with this Order, including but 

not limited to ¶ 292 of the Second Order 
MELENDRES V. SKINNER 11

(Doc. 1765).[6] In consultation with the 

[Professional Standards Bureau (PSB)]

Commander, the Monitor shall make 

determinations and establish policy 

decisions pertaining to backlog reduction 

regarding, by way of example, which 

complaints should be (a) investigated by 

PSB; (b) sent to the Districts for 

investigation or other interventions; or 

(c) handled through other methods, to 

include diversion and/or outsourcing of 

cases. The Monitor must consult with the 

PSB Commander about these policy 

decisions but maintains independent 

authority to make the ultimate decision. 

The authority granted to the Monitor in 

this paragraph shall not be applicable 

when there is no backlog. If the backlog 

is eliminated and then arises again while 

the Defendants are still subject to 

monitoring, this authority will be 

renewed in the Monitor.

347. The Monitor shall revise and/or formalize 

MCSO’s intake and routing processes. 

The Monitor’s authorities shall include, 

but not be limited to, the power to audit 

and review decisions made with respect 

to individual cases and, if necessary, to 

change such designations. The Sheriff 

6 In relevant part, Paragraph 292 limited the scope of the Monitor’s 

authority to review investigations that involved members of the Plaintiff 

class or remedies to which the class members are entitled. 
12 MELENDRES V. SKINNER

and the MCSO shall expeditiously 

implement the Monitor’s directions or 

decision with respect to intake and 

routing, and any other issues raised by the 

Monitor pertaining to backlog reduction 

and any other authority granted the 

Monitor under the Court’s orders. The 

Monitor must consult with the PSB 

Commander about these processes but 

maintains independent authority to make 

the ultimate decision. The authority 

granted to the Monitor in this paragraph 

shall not be applicable when there is no 

backlog. If the backlog is eliminated and 

then arises again while the Defendants 

are still subject to monitoring, this 

authority will be renewed in the Monitor. 

. . . .

350. The Monitor will assess MCSO’s 

compliance with the investigative 

requirements of this order and shall 

determine whether training on 

investigative planning and supervision is 

needed and implement such training.

In January 2023, Sheriff Penzone timely appealed from 

the district court’s Third Order. While the appeal was 

pending, the newly appointed Sheriff of Maricopa County, 

Russ Skinner, was substituted in this case for Sheriff 

Penzone. 
MELENDRES V. SKINNER 13

II.

“We review the scope and terms of an injunction for an 

abuse of discretion.” Melendres IV, 897 F.3d at 1220, citing 

Melendres II, 784 F.3d at 1260. “A district court abuses its 

discretion if it does not apply the correct law or if it rests its 

decision on a clearly erroneous finding of material fact.” 

Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223 (9th Cir. 

2000), citing United States v. Washington, 98 F.3d 1159, 

1163 (9th Cir. 1996). 

A district court’s interpretation of the Federal Rules of 

Civil Procedure is an application of law that we review de 

novo. DP Aviation v. Smiths Indus. Aerospace & Def. Sys. 

Ltd., 268 F.3d 829, 846 (9th Cir. 2001). 

III.

This appeal asks us to consider whether certain remedial 

measures in the Third Order are permissible. We first

address what source of authority the district court relied

upon in issuing the Third Order, as our later analysis depends 

in large part on the answer to that question. 

The Sheriff argues that Federal Rule of Civil Procedure 

53 governs the district court’s actions. Under Rule 53, a 

district court may appoint a special master to “address 

. . . posttrial matters that cannot be effectively and timely 

addressed by an available district judge . . . .” Fed. R. Civ. 

P. 53(a)(1)(C). Although Rule 53 permits the court to grant 

the special master broad authority, Fed. R. Civ. P. 53(c)(1), 

the special master may not compel any action by the parties 

without approval by the district court, see Fed. R. Civ. P. 

53(f). In the Sheriff’s view, the Third Order’s grant of 

authority to the Monitor to make certain decisions and 
14 MELENDRES V. SKINNER

policies that are binding on MCSO exceeds Rule 53’s 

limitations.

Plaintiffs and the United States, on the other hand, 

contend that Rule 53 does not apply because the district court 

relied upon a different source of authority—its inherent 

equitable powers—in vesting the Monitor with the CPA’s

responsibilities and delineating those responsibilities. “The 

inherent powers of federal courts are those that ‘are 

necessary to the exercise of all others.’” Primus Auto. Fin. 

Servs., Inc. v. Batarse, 115 F.3d 644, 648 (9th Cir. 1997), 

quoting Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 

(1980). “This inherent power is codified in the All Writs 

Act,” 28 U.S.C. § 1651(a), which “provides that ‘[t]he 

Supreme Court and all courts established by Act of Congress 

may issue all writs necessary or appropriate in aid of their 

respective jurisdictions and agreeable to the usages and 

principles of law.’” Nat’l Org. for the Reform of Marijuana 

L. v. Mullen (NORML), 828 F.2d 536, 544 (9th Cir. 1987), 

quoting 28 U.S.C. § 1651(a). “The scope of the district 

court’s power to fashion equitable remedies is highly 

contextual and fact dependent.” Stone v. City & County of 

San Francisco, 968 F.2d 850, 861 (9th Cir. 1992), as 

amended on denial of reh’g (Aug. 25, 1992).

Rule 53 does not apply to the Third Order for several 

reasons. First, neither the First Order nor the order 

appointing the Monitor relies upon it. With no indication 

that the court relied on the authority conferred by Rule 53 to 

appoint the Monitor in the first place, the Sheriff’s remaining 

arguments fall flat. 

For instance, the Sheriff contends that Rule 53 applies 

because courts have previously used “monitor” and “special 

master” interchangeably. Yet the cases the Sheriff cites to 
MELENDRES V. SKINNER 15

illustrate this point undermine his position. In each of those

cases, unlike here, the court explicitly relied upon Rule 53 in 

appointing the non-judicial officer.7

The Sheriff’s argument that Rule 53 controls because the

Monitor’s initially-assigned duties resembled those of a 

special master under the Rule fares no better. We have cited

approvingly to case law from the Second Circuit

acknowledging that “the functions of a monitor differ[] 

greatly from those of a special master.” Plata v. 

Schwarzenegger, 603 F.3d 1088, 1096 (9th Cir. 2010), citing

Benjamin v. Fraser, 343 F.3d 35, 45 (2d Cir. 2003), 

overruled on other grounds by Caiozzo v. Koreman, 581 

F.3d 63 (2d Cir. 2009). Special masters appointed under 

Rule 53 possess “the ability to convene and to regulate 

hearings, to rule on the admissibility of evidence, to 

subpoena and swear witnesses, and to hold non-cooperating 

witnesses in contempt.” Benjamin, 343 F.3d at 45, citing 

Fed. R. Civ. P. 53(c)–(d). As discussed infra pp. 17–21, 

those “quasi-judicial” functions differ from the role of the 

Monitor here, which is to assure compliance with and 

implement the court’s remedial directives. Id. (holding that 

a court-appointed agent’s “monitoring function” differed 

from that of a Rule 53 special master). That the district court 

did not direct the Monitor to carry out many of the functions 

authorized by Rule 53 reinforces our conclusion that the 

7 See Toussaint v. McCarthy, 801 F.2d 1080, 1102 n.21 (9th Cir. 1986)

(“The Monitor is a special master, appointed pursuant to Fed. R. Civ. P. 

53.”), overruled in part on other grounds by Sandin v. Conner, 515 U.S. 

472 (1995); NORML, 828 F.2d at 544 (“In addition to invoking Fed. R. 

Civ. P. 53, . . . .”).
16 MELENDRES V. SKINNER

Rule was not the source of the Monitor’s authority at any 

juncture.

8 

Further, with regard to the authorities contested in this

appeal, the district court conferred authority on the 

individual previously appointed as Monitor but did so in a 

different capacity, as CPA. So any resemblance in other 

cases between special masters and monitors is beside the 

point.

Moreover, even if the district court had appointed the 

Monitor initially under Rule 53, the court may subsequently 

rely on its inherent equitable powers to fashion additional 

remedies. See Ruiz v. Estelle, 679 F.2d 1115, 1161 (5th Cir.)

(“[R]ule 53 does not terminate or modify the district court’s 

inherent equitable power to appoint a person, whatever be 

his title, to assist it in administering a remedy.”), amended in 

part, vacated in part on other grounds on denial of reh’g, 

688 F.2d 266 (5th Cir. 1982). Indeed, the district court 

repeatedly relied on its inherent equitable powers in the

subsequent supplemental injunctions.9 In the Second Order, 

the court relied on its “broad and flexible equitable powers 

8 We do not share the Sheriff’s concern that failing to apply Rule 53 here, 

when the district court did not rely on it, would allow courts to “avoid 

Rule 53’s limitations” when appointing special masters. Rule 53 and the 

district court’s inherent equitable powers, while overlapping at times, are 

distinct tools at the court’s disposal. See, e.g., NORML, 828 F.2d at 544 

(“[T]he district court’s reference to a master was proper under the All 

Writs Act, as well as under Fed. R. Civ. P. 53, and was therefore not 

clearly erroneous as a matter of law.”). The court may rely on one tool

without invoking the other.

9 Even in instances where the district court has “failed to specify the 

authority for its order,” we have “assume[d] that the court relied on its 

inherent powers” if “the district court’s inquiry and decision makes the 

relevant authority clear.” Primus Auto. Fin. Servs., Inc., 115 F.3d at 648.
MELENDRES V. SKINNER 17

to remedy past wrongs” and “equitable authority to modify 

its injunctions in light of changed circumstances.” 

“[D]istrict courts have broad equitable power to order 

appropriate relief in civil contempt proceedings.” SEC v. 

Hickey, 322 F.3d 1123, 1128 (9th Cir. 2003). In the Third 

Order, at issue here, the district court relied on its “authority 

to enter civil contempts . . . and to compel appropriate 

remedial measures” to “ensur[e] that investigations are 

completed in sufficient time to administer discipline.” 

In sum, the district court’s reliance on its inherent 

equitable powers in the Second and Third Orders is clear. 

Accordingly, we conclude that, because the district court 

issued the Third Order under its inherent equitable powers

rather than under Rule 53, the Rule’s limits, if any, do not 

apply.

IV.

Next, the Sheriff contends that the district court’s 

delineation and assignment of the CPA’s duties to the 

Monitor violated Article III of the Constitution and 

separation of powers principles in two separate ways.

10 

First, the Sheriff contends the court’s assignment

unconstitutionally delegated to the Monitor authority and 

control over certain aspects of MCSO’s operations.

11 

10 U.S. Const. art. III, § 1 (“The judicial Power of the United States, shall 

be vested in one supreme Court, and in such inferior Courts as the 

Congress may from time to time ordain and establish.”).

11 Plaintiffs contend that the Sheriff waived any argument as to 

Paragraph 350 by not objecting in the district court. “Absent exceptional 

circumstances, we generally will not consider arguments raised for the 

first time on appeal, although we have discretion to do so.” Baccei v. 

United States, 632 F.3d 1140, 1149 (9th Cir. 2011). “We may exercise 
18 MELENDRES V. SKINNER

Second, the Sheriff contends that the Monitor’s decisions 

under Paragraphs 346, 347, and 350 are not subject to

constitutionally-required judicial review. We address each 

argument in turn. 

A.

“The judicial power of the United States must be 

exercised by courts having the attributes prescribed in Art.

III.” N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 

U.S. 50, 59 (1982) (plurality opinion). In arguing that the 

district court impermissibly delegated its adjudicatory 

function to the Monitor, the Sheriff primarily relies on our 

decision in Armstrong v. Brown, 768 F.3d 975 (9th Cir. 

2014). In that case, we vacated an injunction’s provisions 

granting an expert witness, appointed under Federal Rule of 

Evidence 706, the power to “resolve disputes” between the 

parties “about whether non-compliance has occurred” and

“mak[e] findings of fact and conclusions of law, as necessary 

to assess noncompliance.” Armstrong, 768 F.3d at 987. In 

so ruling, Armstrong held that “[t]he dispute resolution 

authority granted to the expert . . . [was] beyond the scope of 

the duties that may be assigned to a Rule 706 expert.” Id. 

this discretion (1) to prevent a miscarriage of justice; (2) when a change 

in law raises a new issue while an appeal is pending; and (3) when the 

issue is purely one of law.” Id. Before the district court, the Sheriff 

objected to the Monitor’s complaint-handling authority in the Third 

Order. Although Paragraph 350 relates to the Monitor’s authority over 

MCSO’s training on investigative planning and supervision, the 

substance of the Sheriff’s argument against the expansion—that, as 

written, the district court vested the Monitor with impermissible

authority—is the same. Therefore, we exercise discretion to review the 

Sheriff’s argument as to Paragraph 350 given that his challenge to all 

three provisions of the Third Order is a purely legal one. 
MELENDRES V. SKINNER 19

Armstrong narrowly resolved the permissibility of

functions assigned to a Rule 706 expert but, in arriving at its 

holding, drew on broader principles involving the delegation 

of judicial responsibilities. For instance, Armstrong cited 

Kimberly v. Arms, 129 U.S. 512, 524 (1889), in which the 

Supreme Court held that a court “cannot . . . abdicate its duty 

to determine by its own judgment the controversy presented, 

and devolve that duty upon any of its officers.” Id. at 988. 

Armstrong also found support for its decision in opinions 

from our sister circuits that “similarly approved the 

appointment of nonjudicial officers to act in advisory 

capacities only” on adjudicatory matters. Id. at 987 n.4 

(collecting cases discussing appointees other than Rule 706 

experts). 

Unlike in Armstrong, however, the district court in this

case assigned to the Monitor additional responsibilities 

related to the implementation of remedial measures—an

executive function—rather than the adjudication of 

compliance with the injunction. After reviewing the 

management expert’s report, the district court found that the 

“failure to complete investigations in a timely manner has

become so extreme as to render investigations completely

ineffectual and render no service to either the complainant 

or MCSO personnel.” To remedy this deteriorating 

situation, the Third Order assigned the Monitor the CPA’s

task of overseeing MCSO’s complaint intake and routing, as 

well as conducting training on investigative planning and 

supervision.

12 These duties do not implicate Armstrong’s 

12 The Monitor’s authority over this narrow area of MCSO’s operations 

is markedly different than the “broad delegation of power” to release 

prisoners from administrative segregation in Toussaint, which we 
20 MELENDRES V. SKINNER

concern that the non-judicial officer will “make findings of 

fact and conclusions of law regarding . . . compliance with 

the remedial plan.” Id. at 988. Therefore, Paragraphs 346, 

347, and 350 of the Third Order do not unconstitutionally 

delegate the court’s adjudicatory role to the Monitor. 

The Sheriff further maintains that MCSO’s status as a

governmental entity bars the district court from delegating 

authority over its operations to the Monitor. In so arguing, 

the Sheriff makes much of NORML’s statement that 

“[m]asters may not be placed in control of governmental 

defendants for the purpose of forcing them to comply with 

court orders.” 828 F.2d at 545, citing Hoptowit v. Ray, 682 

F.2d 1237, 1263 (9th Cir. 1982), overruled in part on other 

grounds by Sandin v. Conner, 515 U.S. 472 (1995). 

NORML is not controlling here. Neither it nor Hoptowit, 

the case on which it relies, had reason to address the issue of 

whether a master may be given authority over a government 

entity. See NORML, 828 F.2d at 545 (“In the instant 

case, . . . the master has not been given the power to 

control or administer [the entity subject to the injunction]’s

efforts, only to observe them.”); Hoptowit, 682 F.2d at 1263 

(“We read the district court’s order of reference, however, to 

empower the master only to monitor compliance with the 

court’s orders and to approve plans ordered submitted by the 

court.”). NORML had no occasion to consider dissimilar 

circumstances, such as a situation in which, as here, there 

has been repeated non-compliance with earlier injunctions 

observed “raise[d] serious constitutional questions,” 801 F.2d at 1102 

n.23, or the “wide-ranging extrajudicial duties” in Cobell v. Norton, 334 

F.3d 1128, 1142 (D.C. Cir. 2003), which were “not limited to 

‘superintending compliance with the district court’s decree,’” id. at 1143

(quoting Ruiz, 679 F.2d at 1162).
MELENDRES V. SKINNER 21

and the monitor’s authority over the governmental entity’s 

operations is quite narrow. Nor did NORML inquire into 

whether the source of the court’s authority to delegate 

control impacts the analysis. The passing statement in 

NORML relied upon by the Sheriff was non-binding dictum, 

see United States v. McAdory, 935 F.3d 838, 843 (9th Cir. 

2019) (“[W]e are not bound by a prior panel’s comments 

‘made casually and without analysis[.]’”, quoting United 

States v. Ingham, 486 F.3d 1068, 1078 n.8 (9th Cir. 2007)), 

and in any event has little bearing on this case.

Plaintiffs, in contrast, urge us to consider cases in which

we and sister circuits have upheld a court’s appointment of

a receivership, “a recognized [equitable] tool for taking over 

other governmental agencies that could not or would not 

comply with the law.” Plata, 603 F.3d at 1093 (collecting 

cases). To be clear, the record does not indicate that the 

district court converted the monitorship to a receivership. 

But the district court’s ability to employ more invasive 

equitable remedies, such as a receivership, with regard to 

governmental defendants strongly suggests that the court 

may provide for the less extensive authority conferred on the 

Monitor in Paragraphs 346, 347, and 350 of the Third Order. 

That the district court acted within the general bounds of 

its inherent powers is consistent with precedent from the 

Supreme Court, as well as this court. See Swann v. 

Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 15 (1971) 

(“Once a right and a violation have been shown, the scope of 

a district court’s equitable powers to remedy past wrongs is 

broad, for breadth and flexibility are inherent in equitable 

remedies.”); Stone, 968 F.2d at 861 (“Federal courts possess 

whatever powers are necessary to remedy constitutional 

violations because they are charged with protecting these 

rights.”). We therefore conclude that, in certain 
22 MELENDRES V. SKINNER

circumstances, the district court, relying on its inherent 

powers, may vest a non-judicial officer with control over 

narrow areas of a governmental defendant’s operations. As 

the Sheriff has confined his Article III challenge to broad 

propositions regarding the propriety of the Monitor’s role as 

CPA and has not challenged the appropriateness of the Third 

Order’s particular remedies in this specific circumstance, 

this appeal does not require us to inquire further. 

B.

Even if the district court may assign the CPA’s duties to 

the Monitor, the Sheriff contends, Paragraphs 346, 347, and 

350 impermissibly omit a mechanism for judicial review. 

We said in Armstrong that a lack of “any mechanism for 

review of the [non-judicial officer’s] decisions by the district 

court” does “risk[] permitting the [non-judicial officer] to 

‘displace the district court’s judicial role.’” 768 F.3d at 988, 

quoting A&M Records, Inc. v. Napster, Inc., 284 F.3d 1091, 

1097 (9th Cir. 2002). But, as we have discussed, this case 

does not involve, as did Armstrong, the delegation of 

adjudicatory authority, so Armstrong’s observation 

regarding displacement of the judicial role is not directly 

applicable.

We nonetheless assume, without deciding, that the 

delegation in an injunction of executive authority to a 

judicially appointed individual requires provision for 

judicial review. Fairly read, the three Orders considered

together do provide for judicial review. Plaintiffs so 

maintain, arguing that the First Order’s provisions for 

judicial review over the Monitor apply with full force to the

Third Order. Specifically, Paragraph 126 of the First Order 

states that “[t]he Monitor shall be subject to the supervision 
MELENDRES V. SKINNER 23

and orders of the Court.” Two paragraphs below, Paragraph 

128, provides:

The ultimate arbiter of compliance is the 

Court and Parties may make their own 

submissions regarding compliance separate 

from the Monitor’s reports. In any areas 

where the Parties are not able to resolve 

issues with the Monitor—including those 

areas where the Order provides for input from 

the Monitor—the Parties may submit their 

grievances directly to the Court for 

resolution.

We agree that the judicial review process in the First 

Order applies to the Third Order. The sequential numbering 

of the supplemental injunction orders and of the paragraphs 

within them support a conjunctive reading. The Third Order

also acknowledges that its provisions “in many respects, 

track over the same territory that the Monitor and the parties 

have already been over ad nause[a]m.” The Third Order 

“expand[ed] the Monitor’s duties to include those of the 

[CPA]” due to the “massive existing backlog, and the need 

to timely correct that backlog.” The district court’s 

recognition within the Third Order of the previous

supplemental injunctions and its reference to “expan[sion]”

of the Monitor’s authority—an inherently relational term—

further weigh in favor of reading the three supplemental 

injunction orders as one.

The Sheriff’s trio of arguments to the contrary are not 

persuasive. We address them in turn. 

First, the Sheriff points out that the Third Order, unlike 

its predecessor, does not expressly “incorporate herewith” 
24 MELENDRES V. SKINNER

the paragraphs of the previous supplemental injunctive 

orders. But the Third Order did not require such text to 

signify continuity with the First and Second Orders. The 

district court made clear that the Third Order’s curative 

measures simply “resolve[]” Sheriff Penzone’s motion to 

modify the Second Order. Given its modifying function and 

sequential numbering, we read the Third Order as 

reaffirming those provisions in the Second Order left 

undisturbed. 

Second, the Sheriff questions why the Third Order would

state explicitly that the Monitor will be paid “consistent with 

¶ 123 of the [First Order]” if that provision already applies. 

But the Third Order gave the Monitor supplemental duties 

as CPA, a change that necessitates clarification of how the 

Monitor would be paid in his new role. The mechanism 

provided for judicial review is not dependent on the specific 

nature of the Monitor’s role, as it includes “any areas” where 

the parties encounter issues with the Monitor, and therefore 

does not warrant similar clarification. 

Third, the Sheriff asks us to infer that Paragraphs 346, 

347, and 350 of the Third Order nullify the judicial review 

provisions in the First Order, and that, given the wording of 

Paragraph 353 of the Third Order, the court did not intend 

for such review of the Monitor’s decisions under those three 

paragraphs. For the reasons that follow, there is no basis for 

that inference.

In authorizing the Monitor to oversee and revise 

MCSO’s complaint intake and routing processes, Paragraphs 

346 and 347 state that the “Monitor must consult with the 

PSB Commander . . . but maintains independent authority to 

make the ultimate decision.” Wording clarifying the 

relationship between the Monitor and MCSO does not 
MELENDRES V. SKINNER 25

displace the court’s authority to review the Monitor’s 

actions.

This understanding is confirmed by the court’s 

exchanges with the management expert at a status 

conference before the issuance of the Third Order. Cf. 

United States v. 60.22 Acres of Land, 638 F.2d 1176, 1178 

(9th Cir. 1980) (“It is our responsibility to construe a 

judgment so as to give effect to the intention of the 

court . . . .”). The district court had requested the 

management expert’s input on how much authority the court 

should vest in the CPA. At the status conference, the district 

court “explore[d]” whether it should appoint a CPA to “have 

the ultimate authority to dictate classification decisions” 

rather than to work collaboratively with MCSO. The focus 

was thus on whether the CPA could make a decision in the 

face of MCSO’s disagreement, not on altering the court’s 

role. To the extent any ambiguity exists, then, a 

comprehensive reading of the record supports interpreting 

“ultimate” in Paragraphs 346 and 347 as clarifying only that 

MCSO cannot reject the Monitor’s decision, rather than as 

precluding judicial review of it. Similarly, Paragraph 350 

provides that the Monitor shall determine whether training is 

needed but does not preclude judicial review of that 

determination. 

The Sheriff posits that, because Paragraph 353 expressly 

provides for judicial review, the absence of similar wording

in Paragraphs 346, 347, and 350 confirms that the Monitor’s 

decisions under those provisions are not subject to judicial

review. The Sheriff misreads Paragraph 353, which

authorizes the Monitor to “present to the Court” proposed 

policies concerning investigations of certain categories of 

cases and provides that “the Court will, thereafter, make 

determinations as to the final policies.” That passage
26 MELENDRES V. SKINNER

provides for the court’s determination of policy in the first 

instance, rather than judicial review of the Monitor’s

decisions. 

The absence of such judicial determination wording in

Paragraphs 346, 347, and 350—which authorize the Monitor 

to make certain operational decisions for MCSO in the first 

instance—does not render those decisions unreviewable by 

the court. Indeed, when the district court in the Second 

Order appointed two other individuals—the Independent 

Investigator and Independent Disciplinary Authority—to 

investigate, prosecute, and adjudicate misconduct cases 

within MCSO, the court ordered that, unless otherwise 

specified, “no party has the right to appeal the decisions of 

either the Independent Investigator or the Independent 

Disciplinary Authority.” Paragraphs 346, 347, and 350

contain no such constraints on the district court’s review.

We reject the Sheriff’s invitation to read them in. 

Accordingly, we conclude that the First Order adequately 

provides a mechanism for judicial review of the Monitor’s 

decisions as CPA.

The Sheriff’s logistical concerns as to the timing of the 

court’s review of those decisions, however, do have some 

salience. Because Paragraph 347 directs MCSO to

implement the Monitor’s individualized intake and routing 

decisions “expeditiously,” as a practical matter, the court’s 

review of any objection made by MCSO could occur after 

MCSO has routed the complaint as directed by the Monitor. 

Thus, MCSO runs the risk of expending additional resources 

if the court agrees with its objection and the complaint need 

not be routed as directed. A similar risk exists with respect 

to any training implemented by the Monitor that the court 

later determines is not necessary. 
MELENDRES V. SKINNER 27

In the event that such a dispute arises, no provision in the 

Third Order or its predecessors precludes an emergency 

motion to the district court for expeditious judicial review of 

the Monitor’s decision. Nor is there any provision 

precluding the parties from raising pragmatic timing 

concerns with the district court, requesting clarification as to 

the timing of judicial review.

13 See SEC v. Lincoln Thrift 

Ass’n, 557 F.2d 1274, 1280 (9th Cir. 1977) (“[T]he district 

court is in the best position to clarify . . . its own order . . . .”). 

Either or both of those procedures can adequately address 

the Sheriff’s timing concerns should the occasion arise to 

address them.

V.

Lastly, the Sheriff argues that Paragraphs 346, 347, and 

350 violate Federal Rule of Civil Procedure 65. Under Rule 

65, an injunction order must “state its terms specifically . . . 

[and] describe in reasonable detail . . . the act or acts 

restrained or required.” Fed. R. Civ. P. 65(d). “The Rule 

was designed to prevent uncertainty and confusion on the 

part of those faced with injunctive orders, and to avoid the 

possible founding of a contempt citation on a decree too 

vague to be understood.” Columbia Pictures Indus., Inc. v. 

Fung, 710 F.3d 1020, 1047 (9th Cir. 2013), quoting

13 At oral argument, the Sheriff’s counsel confirmed that he did not seek 

guidance from the district court as to these timing issues—or, for that 

matter, inquire whether the Third Order provided for judicial review of 

the Monitor’s decisions as CPA—before filing this appeal. To increase 

the chances that future disputes, if any arise, are expeditiously resolved, 

we urge the parties to first seek clarification from the district court. 

Future appeals will be referred to the Ninth Circuit Mediation Office to 

explore a possible resolution through mediation.
28 MELENDRES V. SKINNER

Fortyune v. Am. Multi–Cinema, Inc., 364 F.3d 1075, 1087 

(9th Cir. 2004). 

Relying on City of New York v. Mickalis Pawn Shop, 

LLC, 645 F.3d 114, 145 (2d Cir. 2011), the Sheriff contends 

that the paragraphs at issue lack the specificity that Rule 65 

requires because they direct the Monitor to tell MCSO what 

to do. In Mickalis, the Second Circuit vacated two 

injunctions against retail firearm dealers for violating Rule 

65. 645 F.3d at 144–46. That case also involved a special 

master appointed “to implement, and monitor the 

defendants’ compliance with, certain remedial measures 

contemplated by the injunctions.” Id. at 142. The Second 

Circuit took issue with the injunctions primarily because 

they required defendants to act “in full conformity with 

applicable laws pertaining to firearms” and to “adopt [ ] 

appropriate prophylactic measures to prevent violation” of 

those laws but did not specify which firearm laws applied or 

how the defendants were to alter their behavior to prevent 

violations. Id. at 144. The Second Circuit concluded that

the injunctions were “also problematic because of the extent 

to which they vest[ed] the [s]pecial [m]aster with discretion 

to determine the[ir] terms.” Id. at 145.

The Sheriff’s argument that the Monitor’s limited 

authority over MCSO’s operations contravenes Rule 65 

misses the mark. As an initial matter, if Rule 65 

categorically prohibited an injunction from delegating any 

decision-making authority to a non-judicial officer, 

receiverships—“a recognized tool for taking over other 

governmental agencies”—would never be permitted. Plata, 

603 F.3d at 1093; see also id. at 1093–94 (“There can be 

little question . . . that receiverships are recognized equitable 

tools available to the courts to remedy otherwise 

uncorrectable violations of the Constitution or laws.”). The 
MELENDRES V. SKINNER 29

Sheriff’s interpretation of Rule 65 is incompatible with 

courts’ assignments of receivers.

Further, the supplemental injunctions’ terms in this case 

are a far cry from the enigmatic ones in Mickalis, which

essentially commanded the defendant to obey a broad 

category of laws generally and delegated authority to the 

special master to fill in the huge gaps created by that vague

and general requirement. Here, the district court’s 

injunctions provide MCSO with specific directives with 

which to comply. For instance, Paragraph 204 of the Second 

Order states that “administrative investigations [must be 

completed] within 85 calendar days of the initiation of the 

investigation (60 calendar days if within a Division).” After 

holding Sheriff Penzone in contempt for “knowing and 

continuous” violation of Paragraph 204, the Third Order set 

forth curative measures to reduce the backlog created by his

violation. Paragraphs 346, 347, and 350 do not create 

ambiguity as what MCSO must do; these provisions entrust 

the Monitor with backlog-reduction-related decisions to

effectuate compliance with the Second Order’s very specific 

requirements. In other words, it can hardly be said that the 

injunction’s terms are “too vague to be understood.” 

Fortyune, 364 F.3d at 1087, quoting Schmidt v. Lessard, 414 

U.S. 473, 476 (1974); see also Napster, 284 F.3d at 1097 

(“We do not set aside injunctions under [Rule 65] ‘unless 

they are so vague that they have no reasonably specific 

meaning.’”, quoting E. & J. Gallo Winery v. Gallo Cattle 

Co., 967 F.2d 1280, 1297 (9th Cir. 1992)).

Fortyune provides helpful guidance on how to consider

Rule 65’s specificity requirement. In Fortyune, a district 

court issued an injunction against a defendant movie theater 

company requiring it to modify its seating policies to 

prioritize the companion of a wheelchair-bound patron for
30 MELENDRES V. SKINNER

companion seats. 364 F.3d at 1087. Concluding that the

“injunction could not have been much clearer in describing 

what [the defendant] must do to comply with its dictates,” 

Fortyune rejected the defendant’s argument that Rule 65(d) 

requires that the court “also elucidate how to enforce the 

injunction.” Id. In fact, in Fortyune, we expressed 

confidence in the defendant’s ability to “devis[e]” the 

mandated companion policy. Id. In this case, the district 

court’s confidence in MCSO’s ability to reduce the backlog

on its own was waning, as evidenced by the court’s decision 

to entrust the Monitor as CPA with certain operational 

authority in the Third Order. Taking into account the 

specificity of the previous supplemental injunctions’ terms 

and MCSO’s history of non-compliance with those terms, 

the paragraphs at issue are not so vague that the Sheriff 

cannot understand what is required of him. See Reno Air 

Racing Ass’n., Inc. v. McCord, 452 F.3d 1126, 1133 (9th Cir. 

2006) (“Ultimately, there are no magic words that 

automatically run afoul of Rule 65(d), and the inquiry is 

context-specific.”).

Accordingly, we hold that Paragraphs 346, 347, and 350 

do not violate Rule 65’s specificity requirement.

VI.

In sum, we conclude that Rule 53 does not govern the 

Third Order; that the district court has inherent equitable 

authority to assign the CPA’s responsibilities to the Monitor;

that the First Order provides for adequate judicial review of 

the Monitor’s actions under the Third Order; and that 

Paragraphs 346, 347, and 350 do not contravene Rule 65. 

For these reasons, we affirm the district court’s Third Order.

AFFIRMED.