AngioDynamics, Inc. v. Biolitec AG, et al

Filing

OPINION issued by Sandra L. Lynch, Appellate Judge; Norman H. Stahl, Appellate Judge and David J. Barron, Appellate Judge. Published. [15-1645]

Case: 15-1645

Document: 00116996198

Page: 1

Date Filed: 05/06/2016

Entry ID: 5997762

United States Court of Appeals
For the First Circuit

No. 15-1645

ANGIODYNAMICS, INC.,
Plaintiff, Appellee,
v.
BIOLITEC AG; BIOMED TECHNOLOGY HOLDINGS, LTD.;
and WOLFGANG NEUBERGER,
Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]

Before
Lynch, Stahl, and Barron,
Circuit Judges.

Edward Griffith, with whom The Griffith Firm, Michael K.
Callan, and Doherty, Wallace, Pillsbury & Murphy, P.C., were on
brief, for appellants.
William E. Reynolds, with whom Nixon Peabody LLP was on
brief, for appellee.

May 6, 2016

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STAHL,

Circuit

Page: 2

Date Filed: 05/06/2016

Judge.

Defendants,

who

Entry ID: 5997762

violated

a

preliminary injunction, appealed the resulting civil contempt
order

entered

included

a

provision.
coercive

by

civil

the

district

arrest

court.

warrant

The

and

order

escalating

an

contempt

fines

Defendants persisted in their defiance as the unpaid
fines

continued

to

accumulate.

We

affirmed

the

contempt order and remanded "only to direct the district court
to amend the sanction order so that the fines cease to accrue at
some

total

amount."

AngioDynamics,

Inc.

v.

Biolitec

AG

(Biolitec II), 780 F.3d 420, 428 (1st Cir.), cert. denied, 136
S. Ct. 535 (2015).
The
instructions,
contempt

district
and

order.

court

Defendants
In

this

dutifully

promptly

appeal,

followed

appealed

Defendants

the

argue

our

revised
that

the

underlying preliminary injunction expired by its own terms and
so the district court can no longer coerce compliance with it.
Because Defendants failed to raise this argument at any time
prior to the present appeal, we DENY the appeal.
I.
One

does

not

Facts & Background
need

to

venture

far

back

into

our

catalogue of decisions to find a recitation of facts for this
case.

This is Defendants' fourth appeal.
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See AngioDynamics,

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Inc. v. Biolitec AG (Biolitec I), 711 F.3d 248 (1st Cir. 2013);
Biolitec II, 780 F.3d 420 (1st Cir. 2015); AngioDynamics, Inc.
v. Biolitec AG (Biolitec III), 780 F.3d 429 (1st Cir. 2015).
For the convenience of the reader, however, we take a moment to
trace the travel of the case.
In 2012, AngioDynamics, Inc. ("ADI" or "Plaintiff")
obtained a $23 million judgment in New York against Biolitec,
Inc. ("BI") based on an indemnification clause in an agreement
between

the

two

entities.

Biolitec

I,

711

F.3d

at

250.

Plaintiff sought to secure payment on that judgment by bringing
suit against BI's President and CEO, Wolfgang Neuberger, and its
corporate

parents,

Biolitec

AG

Biomed

("BAG")

Technology

Holdings

(collectively,

("Biomed")

"Defendants"),

and

which,

according to Plaintiff, had looted BI of over $18 million in
assets in order to render it judgment-proof.
F.3d at 432.

Biolitec III, 780

As it turns out, this would be but the first in a

series of attempts to evade payment to ADI and to elude the
power of the courts.
During

discovery,

Defendants

refused

documents and key witnesses, including Neuberger.
33.

to

produce

Id. at 432-

More importantly, Plaintiff soon learned that BAG, based in

Germany, intended to effectuate a downstream merger with its
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Austrian subsidiary.

Id. at 433.

would

assets

transfer

BAG's

enforcing its judgment.

to

Entry ID: 5997762

This, Defendants conceded,

Austria,

precluding

ADI

from

Biolitec I, 711 F.3d at 252.

On September 13, 2012, the district court issued a
preliminary injunction barring Defendants from carrying out the
merger.

On

December

14,

2012,

the

district

court

Defendants' motion for reconsideration.

Id. at 250.

appealed

to

the

preliminary

affirmed on April 1, 2013.
pending,

however,

injunction
Id. at 252.

Defendants

decided

to

this

denied

Defendants

Court,

which

While that appeal was
go

forward

with

the

merger anyway in direct violation of the injunction.

Id. at 250

n.1.
despite

Defendants
repeated

effectuated
assurances

the

to

would comply with the order.

merger

the

on

March

15,

district

court

that

2013,
they

AngioDynamics, Inc. v. Biolitec

AG, 946 F. Supp. 2d 205, 211-12 (D. Mass. 2013).
Plaintiff,

understandably,

court to hold Defendants in contempt.

moved

for

Id. at 211.

the

district

In response,

the district court ordered Neuberger to appear in person at an
April 10, 2013 hearing to show cause why he should not be held
in civil or criminal contempt.

Id. at 212.

Neuberger defied

that order as well, notifying the district court that he would
not attend the show-cause hearing.
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Id.

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On

April

11,

Page: 5

2013,

Date Filed: 05/06/2016

the

district

Entry ID: 5997762

court

issued

a

coercive civil contempt order authorizing escalating, monthly
fines against Defendants and an arrest warrant for Neuberger.
Id.

at

215-16.

The

decision

ordered

Defendants

to

"return

Biolitec AG to the status quo ante," which Defendants conceded
was possible, albeit through a process that would be "lengthy,
burdensome, and onerous."
held

that

continue

"fines

until

and

Id. at 214-15.

incarceration

Defendants

for

effectively

The district court
civil

restore

contempt
the

status

existing prior to the violation of the court's order."
216.

will
quo

Id. at

After a few months, Defendants filed another round of

motions to revoke the contempt order and vacate the underlying
injunction, which the district court denied.
F.3d at 424.

Defendants appealed.

While
injunction

Biolitec II, 780

the

were

stonewalling

the

contempt

order

and,

once

pending

appeal,

Defendants

district

court.

Not

only

again,

the

persisted
did

in

Defendants

unequivocally state that they had no intention of complying with
the

contempt

order,

Defendants

also

disregarded

the

court's

warnings that continued defiance of its orders could result in a
default judgment.
tools

left

at

Biolitec III, 780 F.3d at 433, 436.

its

disposal,

the

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court

eventually

With few
entered

a

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default

Document: 00116996198

judgment

as

a

Page: 6

sanction

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for

violating

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its

discovery

orders and awarded ADI approximately $75 million in damages.
Id. at 436.

A default judgment entered on January 14, 2014, and

a final judgment entered on March 18, 2014.

Id. at 433.

Again,

defendants appealed.
On March 11, 2015, this Court issued decisions in two
companion

cases.

In

Biolitec

II,

we

affirmed

the

district

court's civil contempt sanctions as well as the district court's
denial

of

injunction.

Defendants'

motion

780 F.3d at 429.

to

vacate

the

preliminary

We recognized, however, that

Defendants' unyielding contumacy, paired with the accumulating
fine model imposed by the district court, had resulted in a fine
that "far exceed[ed] the amount of the original judgment ADI
[was]

attempting

to

collect."

Id.

at

428.

This

was,

admittedly, Defendants' own doing since the power to purge the
contempt resided with--and continues to reside with--Defendants.
Id.

Regardless, we decided that the district court should amend

its sanction order "so that the fines cease to accrue at some
total

amount,"

and

we

remanded

"for

the

sole

purpose

of

directing the district court to take action with respect to the
total accruing fine amount."

Id. at 428, 429.

In Biolitec III,

issued that very same day, we also affirmed the district court's
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decision to enter a default judgment against Defendants as a
sanction for discovery violations and to award damages in the
amount of approximately $75 million.

780 F.3d at 436-37.

On April 24, 2015, the district court complied with
our instructions and revised the contempt order by adding a cap
to Defendants' total contempt liability.

The district court

observed that we had "affirmed the [contempt] decision . . . in
all

substantive

respects"

and

"remand[ed]

only

for

a

clarification with regard to the total amount of the ultimate
coercive fine."

The court "cap[ped] the fine Defendants will be

liable for at a total amount of $70 million, or approximately
three times the amount of Plaintiffs' original New York judgment
against Defendant Biolitec, Inc."
True
court's

to

revised

form,
contempt

Defendants
order.

now

appeal

Defendants

the
point

district
to

the

preliminary injunction, which states, "This Order shall be in
effect until this Court enters a final judgment in this action."
Alleging that the preliminary injunction therefore "expired" on
March 18, 2014, the date on which the district court entered a
final judgment in favor of ADI, Defendants now claim that the
district court was without authority to enter a "new" contempt

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decision

on

April

24,

Page: 8

2015

Date Filed: 05/06/2016

to

coerce

compliance

Entry ID: 5997762

with

an

"expired" order.
II.

Analysis

Our decision starts and ends with Defendants' failure
to raise the argument in their prior appeals.

United States v.

Arreguin, 735 F.3d 1168, 1178 (9th Cir. 2013) ("We need not and
do not consider a new contention that could have been but was
not raised on the prior appeal."); In re Cellular 101, Inc., 539
F.3d 1150, 1155 (9th Cir. 2008) ("By failing to raise the . . .
issue

in

the

prior

appeal,

[the

party]

waived

assert the defense in subsequent proceedings.").

its

right

to

Simply put,

Defendants' window of opportunity to make this argument closed
with our twin decisions in Biolitec II and Biolitec III.

As we

stated in Biolitec III, "[w]e will not revisit legal rulings
'explicitly

or

implicitly

decided

decision in the same case.'"

by

an

earlier

appellate

780 F.3d at 434 (emphasis added)

(quoting Remexcel Managerial Consultants, Inc. v. Arlequin, 583
F.3d 45, 53 (1st Cir. 2009)).

"[T]he law of the case doctrine

forecloses reconsideration of issues that were decided--or that
could

have

been

decided--during

prior

proceedings."

United

States v. Williams, 475 F.3d 468, 471 (2d Cir. 2007) (emphasis
added).
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It

is

Page: 9

unclear

Date Filed: 05/06/2016

whether

the

Defendants'

Entry ID: 5997762

failure

to

raise this argument in their prior appeals was the result of
inadvertence or tactical reserve and procedural gamesmanship.
Either way, we decline to address their challenge now.

During

Defendants' prior appeals, they simultaneously challenged the
contempt

order,

the

entry

of

default

judgment,

the

final

judgment award, and--again--the preliminary injunction itself.
All of the ingredients for the present appeal were at hand, and
yet Defendants declined to make their argument at that time.
Perhaps, they opted to await our decisions and see how they
fared, and when they realized that their original recipe had
failed to impress, they used the very same ingredients to cook
up a collateral challenge to those decisions by appealing an
order entered at our behest.
Whether or not Defendants intentionally delayed making
this

argument,

the

argument

was

available

only

because

of

Defendants' default and continued intransigence in the District
Court.

We

thus

decline

to

allow

them

to

profit

from

that

conduct, given that they are raising this argument only at this
late date.

See In re Cellular, 539 F.3d at 1155 ("Permitting a

case to proceed to a decision on the merits before asserting a
previously

available

defense

undermines
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the

integrity

of

the

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judicial

system,

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wastes

Date Filed: 05/06/2016

judicial

resources,

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and

imposes

substantial costs upon the litigants." (internal quotation marks
and citations omitted)); 18B Wright & Miller, Fed. Prac. & Proc.
Juris. § 4478.6 (2d ed.).
have

posed

a

question

Although the present challenge might

for

our

consideration

had

Defendants

raised it in a timely manner, its current deployment reeks of an
attempt at re-litigation.
Defendants

seek

result in two ways.
until

the

argument

revised
because

to

circumvent

this

straightforward

First, they contend that they had to wait
contempt

only

order
was

then

issued
contempt

compliance with an expired order.

before

raising

entered

to

this

coerce

Second, they argue that the

issue is a "jurisdictional" one and, therefore, may be raised at
any time.

Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)

("[S]ubject-matter jurisdiction, because it involves a court's
power

to

hear

a

case,

can

never

be

forfeited

or

waived."

(quoting United States v. Cotton, 535 U.S. 625, 630 (2002))).
We find neither justification persuasive.
Defendants'
Defendants'

prior

set

first

parry

of

appeals,

misses
they

the
were

mark.
subject

During
to

a

contempt order and continuously escalating fines even though the
underlying preliminary injunction had "expired" as a result of
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their default.

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We affirmed the contempt order and remanded "for

the sole purpose of directing the district court" to set a total
cumulative

liability

figure.

(emphasis

added).

Thus,

Biolitec
the

II,

780

Defendants'

F.3d

"expired

at

429

order"

argument was as available to them at the time of their prior
appeals as it was after the district court capped the escalating
fines, per our direction.

Nothing about the disposition of the

prior appeal could change that simple fact.

Defendants had both

the incentive and the opportunity to raise that issue with this
Court and failed to do so.1
Defendants'
equally unavailing.

second,

"jurisdictional"

argument

is

"'Jurisdiction,' it has been observed, 'is

a word of many, too many, meanings.'"

Steel Co. v. Citizens for

a Better Env't, 523 U.S. 83, 90 (1998) (quoting United States v.
Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996)).
that

"[c]ourts--including

[the

Supreme

The problem is

Court]--have

sometimes

1

Nor do we imagine the Supreme Court would be particularly
impressed with this argument.
In petitioning the Court to
review our decision in Biolitec II, Defendants raised precisely
this point. Petition for a Writ of Certiorari, No. 15-69, 2015
WL 4319585, at *15 n.21 (July 1, 2015) ("Biolitec has appealed
the Remand Order on the ground that the Preliminary Injunction
expired by its own terms upon entry of the Default Judgment and
was no longer in effect when the Remand Order was entered on
April 24, 2015."). That petition failed. 136 S. Ct. 535.

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mischaracterized claim-processing rules or elements of a cause
of action as jurisdictional limitations, particularly when that
characterization [is] not central to the case, and thus [does]
not require close analysis."
559

U.S.

rulings"

154,
can

161

Reed Elsevier, Inc. v. Muchnick,

(2010).

confuse

Such

the

"drive-by

distinction

jurisdictional
between

"true

jurisdictional conditions" and "nonjurisdictional limitations on
causes

of

action."

Id;

("Subject

matter

sometimes

erroneously

see

also

jurisdiction

Arbaugh,

in

conflated

546

U.S.

federal-question

with

a

plaintiff's

at

cases
need

511
is
and

ability to prove the defendant bound by the federal law asserted
as the predicate for relief--a merits-related determination."
(quoting 2 J. Moore et al., Moore's Federal Practice § 12.30[1],
p. 12–36.1 (3d ed. 2005)).
To

curb

this

practice,

the

Supreme

Court

has

"evince[d] a marked desire to curtail" such flippant use of the
term in recent years.

Reed, 559 U.S. at 161.

Courts (and

litigants) have been encouraged to use the term jurisdictional
"only when it is apposite."
must

proceed

with

caution

Id.
and

Heeding this admonition, we

take

care

party's mere self-serving characterization.

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not

to

indulge

any

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The
one.

question

of

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contempt

jurisdiction

is

Entry ID: 5997762

a

complex

But while the boundary between a court's jurisdiction to

order contempt and the merits of that court's contempt order may
be difficult to discern at times, Defendants' argument fails to
qualify as jurisdictional under any fair reading of the law.
The Supreme Court has explained that "'[j]urisdiction'
refers to 'a court's adjudicatory authority.'

Accordingly, the

term 'jurisdictional' properly applies only to 'prescriptions
delineating the classes of cases (subject-matter jurisdiction)
and

the

persons

authority."

(personal

jurisdiction)'

implicating

that

Id. at 160-61 (emphasis added) (internal citations

omitted) (quoting Kontrick v. Ryan, 540 U.S. 433, 455 (2004));
see

also

Bowles

v.

Russell,

551

U.S.

205,

212-13

(2007);

Scarborough v. Principi, 541 U.S. 401, 414 (2004).
Accepting

this

premise,

Defendants'

argument

would

appear to be a challenge to the legal propriety of the revised
contempt order, not the district court's jurisdiction to issue
that revision.

This is because the court's jurisdiction to hold

a party in civil contempt would spring from its jurisdiction
over the action itself.

"A district court's authority to issue

a contempt order derives from its inherent power to 'sanction
. . . litigation abuses which threaten to impugn the district
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court's integrity or disrupt its efficient management of [case]
proceedings."

Biolitec II, 780 F.3d at 426 (alterations in

original) (quoting United States v. Kouri–Perez, 187 F.3d 1, 7
(1st Cir. 1999)).

While "a proceeding in criminal contempt is a

separate and independent proceeding at law, with the public on
one side and the respondent on the other," "[p]roceedings in
civil

contempt

are

between

the

original

parties

instituted and tried as a part of the main cause."

and

are

Parker v.

United States, 153 F.2d 66, 70 (1st Cir. 1946) (emphasis added);
see also Ramos Colon v. U.S. Atty. for Dist. of P.R., 576 F.2d
1,

5

(1st

Cir.

1978)

("Strictly

a

remedial

action,

civil

contempt arises out of the main suit and . . . is aimed at
restoring the parties to the positions they would have held had
the order been obeyed." (emphasis added)).2
In

other

words,

the

court's

jurisdiction

to

impose

civil contempt would run concurrent with the court's subjectmatter jurisdiction over the action.

Cf. Lewis v. S.S. Baune,

534 F.2d 1115, 1121 (5th Cir. 1976) ("[A]ll courts . . . have
inherent power, within certain limits, to control the conduct of

2

Criminal contempt, on the other hand, is a "crime in the
ordinary sense."
United Mine Workers of Am. v. Bagwell, 512
U.S. 821, 826 (1994) (quoting Bloom v. State of Illinois, 391
U.S. 194, 201 (1968)).

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the parties who have subjected themselves to the jurisdiction of
the courts. . . . However, merely because the court has power,
it does not necessarily follow that any and all exercises of
such

power

demonstrate

are

proper.").

the

elements

Although
of

civil

a

movant

would

contempt,

need

such

as

to
the

contemnor's "ability to comply with the order" or the fact that
the contemnor actually "violated [an] order," Hawkins v. Dep't
of Health & Human Servs., 665 F.3d 25, 31 (1st Cir. 2012), these
requirements

would

mark

the

proper

exercise

of

the

contempt

authority, not count as jurisdictional prerequisites.
This view recognizes the contempt power as an inherent
aspect

of

the

federal

courts'

authority

over

cases.

In

establishing the lower federal courts, the Judiciary Act of 1789
confirmed this power and necessarily vested the courts with it.
See Green v. United States, 356 U.S. 165, 179 (1958), overruled
in part on other grounds by Bloom v. State of Illinois, 391 U.S.
194,

201

(1968);

Anderson

v.

Dunn,

19

U.S.

204,

227

(1821)

("Courts of justice are universally acknowledged to be vested,
by their very creation, with power to impose . . . submission to
their lawful mandates . . . .").

"The moment the courts of the

United

existence

States

were

called

into

and

invested

with

jurisdiction over any subject, they became possessed of [the
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contempt] power."

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Ex parte Robinson, 86 U.S. 505, 510 (1873).

Thus, if the court possesses subject-matter jurisdiction over an
action,

it

would

seem

that

it

must

possess

civil

contempt

jurisdiction in equal measure to see that action through.
The

trouble

arises

in

attempting

to

categorize

the

statutory limitations that Congress has imposed upon that power.
"In 1831, Congress first enacted the statute that restricted the
circumstances under which contempt sanctions could be employed-restrictions that today are embodied in 18 U.S.C. § 401 . . . ."
Armstrong v. Guccione, 470 F.3d 89, 106 (2d Cir. 2006).

With

§ 401, Congress limited the contempt power to three classes of
cases,

including

disobedience

to

the

court's

process, order, rule, decree, or command."

"lawful

writ,

See Robinson, 86

U.S. at 511; 18 U.S.C. § 401(3) ("A court of the United States
shall have power to punish . . . such contempt of its authority
. . . as . . . [d]isobedience or resistance to its lawful writ,
process, order, rule, decree, or command.").3

The question is

3

"[Section] 401's use of the term 'punish' must be viewed
in the context of its predecessor statutes, which plainly
included within the meaning of 'punish' a court's coercive civil
contempt power, as well as the power to sanction a contemnor
criminally." Armstrong, 470 F.3d at 105.

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whether, and to what extent, these statutory limitations are
jurisdictional in nature.
On the one hand, the Supreme Court occasionally has
referred to § 401 in jurisdictional terms.

See, e.g., Cammer v.

United States, 350 U.S. 399, 405 (1956) ("We see no reason why
the category of 'officers' subject to summary jurisdiction of a
court under § 401(2) should be expanded beyond the group of
persons

who

serve

as

conventional

court

regularly treated as such in the laws.").
Robinson,

the

Supreme

Court

vacated

a

officers

and

are

Indeed, in Ex parte
contempt

order

that

disbarred the contemnor, and the Court stated that "the question
. . . [was] not whether the court erred, but whether it had any
jurisdiction
contempt."

to

disbar

[the

86 U.S. at 511.

contemnor]

for

the

alleged

Because the statute limited the

implements available to the court to fines or imprisonment, the
Supreme Court held that disbarment exceeded the district court's
jurisdiction.

See id. at 512-13.

On the other hand, the Supreme Court has cautioned in
more recent years that Congress must clearly express that a
limitation is jurisdictional in order for the federal courts to
interpret it as such.
exceptions

to

that

Reed, 559 U.S. at 163.

rule,

a

statute
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will

only

And, in rare
be

"ranked

as

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jurisdictional absent an express designation" if the statutory
limitation is "of a type that [the Supreme Court] ha[s] long
held

[does]

'speak

'jurisdictional'
Court's

in

jurisdictional

label."

"unrefined

Id.

at

terms'

168.

dispositions"

of

even

Any

of

absent

the

jurisdiction

a

Supreme

"should

be

accorded 'no precedential effect' on the question whether the
federal

court

ha[s]

authority

to

adjudicate

[a]

claim."

Arbaugh, 546 U.S. at 511 (quoting Steel Co., 523 U.S. at 91).
Here,

the

statute

does

not

speak

in

explicitly

jurisdictional terms and only Robinson examines the nature of
the limitations in any meaningful measure.

As such, it might be

more appropriate to read § 401 as setting limits upon the proper
exercise of the court's contempt power rather than as setting
limits upon the court's underlying contempt jurisdiction.
Yet, we need not resolve this difficult question today
because

Defendants'

appeal

would

fail

to

qualify

as

jurisdictional even if we were to assume that § 401 sets out
jurisdictional limits.

There is no question that the district

court had (and retains)4 jurisdiction over the present action.

4

The district court retains jurisdiction over the action so
long as its judgment remains unexecuted. Fafel v. DiPaola, 399

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In addition, there is no question that the alleged contempt
falls within one of the three classes delineated by § 401 (the
alleged
coercive

violation
sanctions

of

a

fall

lawful

order)

within

the

and

that

category

permitted by § 401 (fines and imprisonment).

the
of

court's

sanctions

The only question

raised by Defendants' appeal is whether the elements necessary
to sustain a finding of civil contempt--namely, the ongoing,
actual violation of a lawful order--were satisfied.

But this is

a question about the merits of the order, not whether it fell
outside § 401's purview altogether.

See Robinson, 86 U.S. at

511 (distinguishing between the question of "whether the court
erred" in finding that "contempt was committed" and the question
of "whether [the court] had any jurisdiction" to use disbarment
as

a

sanction).

Such

a

challenge

does

not

become

"jurisdictional" just because Defendants call it so.
Defendants' cited authorities do not hold otherwise.
In

Shillitani

v.

United

States,

for

example,

a

witness

was

confined in order to coerce him into answering questions for a
grand jury.

384 U.S. 364, 370 (1966).

Once the grand jury was

discharged, however, the "contumacious witness c[ould] no longer

F.3d 403, 411 (1st Cir. 2005) ("[E]nforcement jurisdiction . . .
extends . . . as far as required to effectuate a judgment.").

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be confined since he then ha[d] no further opportunity to purge
himself of contempt."

Id. at 371.

Having lost "the ability

. . . to comply with the court's order, . . . the rationale for
civil contempt vanishe[d]."

Id. at 371-72.

This challenges the

merits of continued contempt, not the court's jurisdiction.

See

also FTC v. Verity Int'l, Ltd., 443 F.3d 48, 70 (2d Cir. 2006)
("The district court . . . no longer requires [the defendants]
to do the act that the contempt sanctions coerce them do to.
Thus, the sanctions must be vacated."); Consol. Rail Corp. v.
Yashinsky, 170 F.3d 591, 596 (6th Cir. 1999) (holding that,
because the coercive order "no longer serves a purpose," the
contumacious party was "no longer . . . in active contempt of
court for refusing to comply").
order,

whether

coercion

Whether a party violated an

continues

to

serve

its

purpose,

and

whether the party retains the ability to purge5 are all questions
about the merits of the court's contempt decision.
In

fact,

the

only

case

cited

by

Defendants

that

analyzes the question in clearly jurisdictional terms bolsters

5

In order to remain coercive rather than punitive, the
contemnor must retain the ability to purge the violation so that
he "carries the keys of his prison in his own pocket." Bagwell,
512 U.S. at 828 (quoting Gompers v. Buck's Stove & Range Co.,
221 U.S. 418, 442 (1911)).

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Case: 15-1645

our

Document: 00116996198

view.

In

EEOC

Page: 21

v.

Local

Date Filed: 05/06/2016

40,

Int'l

Ass'n

Entry ID: 5997762

of

Bridge,

Structural & Ornamental Iron Workers, the Second Circuit held
that "[a] court does not have inherent power to enforce an order
that has expired."

76 F.3d 76, 80 (2d Cir. 1996).

case, however, the "order" was a consent decree.

In that
Id.

The

decree, entered in 1980, expired in three years unless the Equal
Employment

Opportunity

Commission

extension within that time.
without
satisfied

EEOC
and

intervention,
the

parties

continuing jurisdiction."

("EEOC")

Id. at 81.

for

purpose

of

were

"released

the
from

decree
the

was

court's

In other words, "the court's

enforcement authority expired when the decree expired."
80 (emphasis added).

an

Thus, after three years

the

Id.

moved

Id. at

Because the court no longer possessed

jurisdiction over the action at all, it is no surprise that the
court lacked any "inherent power" to hold one of the parties in
contempt based on a "violation" a decade later.
The case at bar bears no resemblance.

Id. at 78.
In this case,

the district court continues to maintain jurisdiction over the
action, Defendants violated the terms of the underlying order
prior to its "expiration," and the court took action to rectify
the

situation

affirmed,

and

within

the

Defendants

context
now

of

raise

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an
a

ongoing
belated

case.

We

challenge

Case: 15-1645

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implicitly

foreclosed

Page: 22

by

our

Date Filed: 05/06/2016

prior

decisions.

Entry ID: 5997762

In

such

circumstances, Defendants' appeal must fail.6
III.

Conclusion

"The procedure to enforce a court's order commanding
or forbidding an act should not be so inconclusive as to foster
experimentation with disobedience."
56, 69 (1948).

Maggio v. Zeitz, 333 U.S.

Defendants in this case, who have repeatedly

thumbed their nose at the district court, "are not unwitting
victims of the law. . . . They knew full well the risk of
crossing the forbidden line."
336 U.S. 187, 193 (1949).

McComb v. Jacksonville Paper Co.,

Defendants cannot now hang their hat

on a theory borne of their own defiance and delay.

For the

foregoing reasons,7 we DENY the appeal.8

6

Defendants raise a last-ditch argument in the event we
find, as we do, that the issue is not jurisdictional and that
they are deemed to have had the opportunity to raise the issue
earlier.
Defendants argue that waiver is a matter of
discretion, and they urge us to make an exception in this case.
In re Net-Velázquez, 625 F.3d 34, 41 (1st Cir. 2010). Needless
to say, this is not a case where "the equities heavily
preponderate in favor of such a step," id. (quoting Nat'l Ass'n
of Soc. Workers v. Harwood, 69 F.3d 622, 627 (1st Cir. 1995)),
and so we would decline to exercise our discretion to hear the
appeal regardless.
7

Although we need not reach the merits of Defendants'
appeal, we do regard their theory--which they base on
Shillitani, Verity, and Yashinky--with some skepticism.
The
injunction set out a temporal limit ("in effect until . . .

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final judgment"), but it also assumed compliance with its
substantive terms ("Defendants shall not carry out the proposed
'downstream merger'"). The order as a whole served one purpose:
keeping assets available to satisfy a judgment.
United States
v. Christie Indus., Inc., 465 F.2d 1002, 1007 (3d Cir. 1972)
("The language of an injunction must be read in the light of the
circumstances surrounding its entry . . . [such as] the mischief
that the injunction seeks to prevent."); see also Ohr ex rel.
Nat'l Labor Relations Bd. v. Latino Exp., Inc., 776 F.3d 469,
480 (7th Cir. 2015) ("[A]ny other interpretation . . . would
eviscerate the effect of [preliminary injunctions], as a party
could simply continue its violation . . . long enough that the
district court order expire[s] by its own terms.").
Nor need we delve deeply into other equitable grounds upon
which the appeal might be barred. Sapoundjiev v. Ashcroft, 376
F.3d 727, 729 (7th Cir. 2004) ("Someone who cannot be bound by a
loss has warped the outcome in a way prejudicial to the other
side; the best solution is to dismiss the proceeding.").
8

Because the order stands, we do not decide here what
Defendants might owe even if the contempt order expires by law
or by purge.
The liability cap was not a fixed, determinate
fine set out in advance, but rather a ceiling on accumulated,
past due fines.
When a court imposes ongoing fines at regular
intervals,
these
fines--like
civil
imprisonment--"exert
a
constant coercive pressure." Bagwell, 512 U.S. at 829. "[O]nce
the jural command is obeyed, the future, indefinite, [monthly]
fines are purged."
Id. (emphasis added).
Presumably,
Defendants' uninterrupted disregard of the contempt order cannot
render collectable past due amounts punitive.
See id. at 840
n.* (Scalia, J., concurring) ("The per diem fines . . . were in
most relevant respects like conditional prison terms[,] . . .
the penalty continued until the contemnor complied, and
compliance stopped any further punishment but of course did not
eliminate or restore any punishment already endured." (emphasis
added)). Of course, the district court may still "reassess the
fine amount if Defendants come into compliance."
See Biolitec
II, 780 F.3d at 428.

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