Eleventh Circuit: No Contempt Appeals Without a Sanction
In In re Grand Jury Subpoena, the Eleventh Circuit explained that it could not review a contempt decision without a sanction.
The case involved subpoenas directed to three businesses. The document custodian for those businesses unsuccessfully moved to quash the subpoenas. The custodian then refused to comply with the subpoenas. The district court accordingly held the custodian in contempt. But the district court stayed any decision on sanctions until after the custodian could appeal.
The Eleventh Circuit dismissed the appeal for a lack of jurisdiction. To be sure, an order of contempt is often immediately appealable as a final decision under 28 U.S.C. § 1291. But to be final, a non-contingent sanction must accompany the contempt. Otherwise, the contempt is akin to a determination of liability but not damages. And a determination of liability is not final until damages are set.
The Eleventh Circuit added that the Supreme Court’s decision in United States v. Ryan was not to the contrary. Taken out of context, Ryan could be read to suggest that only a contempt citation is necessary to appeal. But Ryan didn’t involve a contempt appeal, nor did it have any reason to consider the appealability of a sanction-less contempt. It accordingly cannot be read to allow for contempt appeals without a sanction. In so reading Ryan, the Eleventh Circuit split with the Second Circuit.
The Eleventh Circuit ended by noting that district courts are free to impose a sanction but then immediately stay its execution pending an appeal.
In re Grand Jury Subpoena, 2023 WL 1232830 (11th Cir. Jan. 31, 2023), available at the Eleventh Circuit and Westlaw
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