Herring v. City of Ecorse (6th Cir. 2025): Clarifying Waiver-Versus-Forfeiture, Rule 3(c)(4) “Merger,” and Res Judicata in § 1983 Retaliation Litigation

Introduction

Cornelius Herring and Geoffrey Howard, two current or former police officers for the City of Ecorse, Michigan, alleged that municipal officials retaliated against them for protected speech (reporting corruption to the FBI) and protected association, in violation of the First Amendment and 42 U.S.C. § 1983. After losing companion discrimination suits in state court, they filed a federal action raising retaliation theories that overlapped substantially with their prior state claims. The district court understood most of their new claims to be barred by res judicata, and later granted summary judgment on the few surviving theories. On appeal the Sixth Circuit affirmed in full, emphasizing three doctrinal points that will guide future litigants:

the difference between “waiver” and “forfeiture,” and the appellate consequences of under-briefing an issue;
the breadth of Federal Rule of Appellate Procedure 3(c)(4), which allows earlier interlocutory orders to “merge” into a final judgment for purposes of appeal, despite technical defects in the notice of appeal; and
the continued vitality of res judicata to preclude § 1983 claims that could have been raised in earlier state litigation once the underlying facts were “known or knowable.”

Summary of the Judgment

The Court of Appeals (Chief Judge Sutton, and Judges Stranch & Ritz, opinion by Judge Ritz) affirmed the Eastern District of Michigan’s dismissal and summary-judgment rulings. In short:

Most of the alleged retaliatory acts occurred— or were discoverable—while the plaintiffs’ state cases were pending, so the federal claims were barred by res judicata.
Several theories were forfeited because plaintiffs failed to develop supporting arguments in either the district court or on appeal.
Statements made by a former police director in his own whistle-blower lawsuit could not support § 1983 liability because he was not acting “under color of state law.”
Psychological “fitness-for-duty” exams ordered for all officers (or as part of state licensing requirements) were not adverse actions.
Because no constitutional violation survived, the Monell claim against the municipality necessarily failed.

Analysis

1. Precedents Cited and Their Influence

Thaddeus-X v. Blatter (6th Cir. 1999, en banc) – supplies the tripartite test for First Amendment retaliation (protected conduct, adverse action, causal connection).
Mezibov v. Allen (6th Cir. 2005) – restates the same test and underscores context-sensitivity.
Bell v. Johnson (6th Cir. 2002) – “de minimis injury” cannot satisfy adverse-action prong; relied on when the court rejected generalized reputational harms as insufficient.
Lugar v. Edmondson Oil (U.S. 1982) – two-part “state action” test, pivotal in rejecting liability for statements by a private former official.
Olano (507 U.S. 725) – distinction between waiver (intentional relinquishment) and forfeiture (inadvertent failure to press a right), framing the panel’s treatment of abandoned issues.
Caudill v. Hollan (6th Cir. 2005) – liberal construction of Fed. R. App. P. 3(c); helped the panel accept appellate jurisdiction over district-court orders not specifically listed in the notice of appeal.
Scott v. Clay County (6th Cir. 2000) – no municipal liability under Monell absent an underlying constitutional violation.
Classic Brady-Giglio authority (Brady v. Maryland and Giglio v. United States) – supplied background on prosecutor “credibility” lists, although not directly decisive.

2. Legal Reasoning of the Court

a) Res Judicata. Michigan’s transactional approach to claim preclusion bars “every claim arising from the same transaction that the parties, exercising reasonable diligence, should have brought.” The Sixth Circuit agreed that:

Most alleged retaliatory remarks, fitness exams, or disciplinary threats pre-dated the state-court summary-disposition orders or were otherwise discoverable during those suits;
Hence the federal claims were “identical in substance” or could have been raised previously, satisfying all four Michigan elements (prior decision on the merits, same parties, subsequent action on the same transaction, and a decision by a court of competent jurisdiction).

b) Waiver v. Forfeiture. The panel carefully corrected the district court’s shorthand reference to “waiver,” explaining that the officers had forfeited (not affirmatively waived) issues by perfunctory briefing. Regardless, the distinction did not resuscitate the claims; failure to argue a point below and on appeal remains fatal.

c) Rule 3(c)(4) & Appellate Jurisdiction. Even though plaintiffs’ notice of appeal referenced only the summary-judgment order, Rule 3(c)(4) deems all interlocutory orders that “merge” into the final judgment automatically appealed. This spared the court any jurisdictional defect and allowed examination of earlier dismissals—though plaintiffs still lost on the merits.

d) State Action Requirement. To sue under § 1983, defendants must act “under color of state law.” Remarks made by former Director Moore after his termination, in his private capacity, failed the Lugar test. Plaintiffs offered no argument or evidence supporting either prong (state-created right or nexus), so the claim failed.

e) Adverse-Action Threshold. The court reiterated that compulsory psychological exams, reputational slurs without concrete consequences, or generalized “stress” often fall below the “ordinary firmness” standard. Because plaintiffs identified no tangible loss (e.g., suspension, demotion, pay cut), these incidents were non-actionable.

f) Monell. Without an underlying constitutional wrong, municipal liability cannot attach—an uncontroversial but essential capstone to the opinion.

3. Potential Impact of the Judgment

Emboldened use of forfeiture. The decision is a stark reminder that litigants must do more than list factual allegations—each theory must be developed in briefing or it dies on appeal.
Clarifies Rule 3(c)(4). Though the rule was amended in 2021, few published cases interpret it. The panel’s straightforward application signals that the Sixth Circuit will read notices of appeal generously, minimizing trap-door dismissals but still requiring substantive argument.
Reasserts Michigan’s broad res judicata bar. Federal plaintiffs who previously litigated in Michigan state court should scrutinize what was “known or knowable” when crafting any new § 1983 complaint.
Practical lesson for police-discipline cases. Routine, department-wide fitness exams or Brady-Giglio disclosures seldom constitute adverse employment actions, at least absent concrete adverse consequences.
Unpublished yet persuasive. Although “Not Recommended for Publication,” Sixth-Circuit practitioners often cite unpublished opinions for their persuasive value. Expect Herring to surface in waiver/forfeiture or Rule 3(c)(4) skirmishes.

Complex Concepts Simplified

Waiver vs. Forfeiture. Waiver = you intentionally relinquish a right; forfeiture = you accidentally fail to press it on time. Either way, the court will not consider the abandoned argument.
Res Judicata (Claim Preclusion). Think of litigation like painting a room: you must coat all the walls you can reach the first time. If you later sue over an unpainted wall that you could have reached originally, the court says “too late.”
Rule 3(c)(4) “Merger.” When you appeal the final judgment, earlier orders—motions to dismiss, discovery sanctions, etc.—“ride along” automatically, even if you forget to mention them, provided the notice designates the final judgment itself.
State-Action Test. Private conduct becomes “state action” only when (1) it uses a state-created power (e.g., police arrest authority) and (2) the actor is functionally a state official. A fired employee talking to the press usually fails both prongs.
Brady-Giglio List. A prosecutor’s register of officers whose credibility is questionable; disclosure to criminal defendants is constitutionally required. Being on the list can hinder an officer’s testimony opportunities but—standing alone—may not be an “adverse action” for retaliation purposes.

Conclusion

Herring v. City of Ecorse is less about sensational facts and more about procedural rigor. By enforcing forfeiture rules, applying Michigan’s expansive res judicata doctrine, and clarifying the reach of Rule 3(c)(4), the Sixth Circuit sent a clear message: § 1983 plaintiffs must carefully cultivate each claim from the trial court forward; “placeholder” allegations will not survive. The case also underscores that mundane personnel measures and post-employment statements rarely cross the constitutional threshold for retaliation. While unpublished, the opinion supplies a concise roadmap for future arguments on waiver, merger of orders for appeal, and the limits of adverse action. Practitioners—especially in employment-retaliation and police-discipline contexts—ignore these lessons at their peril.