Continuing a series of opinions that vacated findings of contempt – most recently in Waste Management v. Kattler, 776 F.3d 336 (5th Cir. 2015) – the Fifth Circuit vacated a contempt finding against an attorney for allegedly encouraging his client to make inappropriate online postings. Test Masters Educational Services v. Singh Educational Services, No. 13-20250 (Aug. 21, 2015). Applying Waste Management, the Court found inadequate notice from a show-cause order that only named the client. On the merits, agreeing that the relevant injunction against the client bound the attorney, the Court found no clear and convincing evidence that he personally had violated the injunction.
An attorney challenged sanctions and contempt orders on appeal; one of her major points was inability to pay. The Fifth Circuit reminded that inability to pay is a defense to a charge of civil contempt, as to which “[t]he alleged contemnor bears the burden of producing evidence of his inability to comply. Failure to do so waives further consideration of this issue, even in the face of an order that added $100/day for noncompliance. Garrett v. Coventry, No. 14-10525 (Feb. 6, 2015).
The district court ordered Glay Collier, a bankruptcy attorney, to stop advertising for “no money down” Chapter 7 services. Despite efforts by Collier, some online ads remained. The district court found him in contempt and ordered him confined for 48 hours “[a]s a result of the violation of this Court’s order, without any reasonable excuse other than ‘I forgot[.]'” In re Glay Collier, No. 14-30887 (Sept. 19, 2014, unpublished). The Fifth Circuit granted mandamus, finding that this order involved criminal rather than civil contempt, and thus triggered procedural safeguards that had not been invoked. Among other considerations, the Court noted that “the sanction was for an unconditional term of imprisonment,” that Collier “could have taken additional steps to comply with the court’s order by the time he was remanded into custody,” and that the district court cited “‘the violation’ of [its] order (not the continued non-compliance) as the basis for its finding of civil contempt.” A similar order was treated in the same fashion in the later case of Wheeler v. Collier, No. 14-30961 (March 5, 2015, unpublished).
A preliminary injunction forbade the Department of Health and Human Services from “acting in accordance with the Notice of Termination . . . relative to [a nursing facility’s] Medicare and Medicaid Provider Agreement”. After the injunction expired, HHS proceeded with termination. Oaks of Mid City Resident Council v. Sebelius, No. 12-30860 (July 17, 2013). The Fifth Circuit reversed a contempt finding against HHS, agreeing with the government’s position that the injunction was designed to pause the termination process but not forbid a later termination unrelated to the specified Notice. The Court’s approach echoes that of another recent case vacating a contempt order against the federal government, Hornbeck Offshore Services v. Salazar, No. 11-30936 (Nov. 27, 2012, revised April 9, 2013).
In Hornbeck Offshore Services v. Salazar, the Secretary of the Interior appealed a $530,000 civil contempt award. No. 11-30936 (Nov. 27, 2012). After the Deepwater Horizon disaster, the Interior Department imposed an offshore drilling moratorium, which the district court enjoined on the ground that Interior had not properly followed the Adminstrative Procedure Act. Interior then imposed a new moratorium supported by more detailed findings. The Fifth Circuit reversed the contempt award, noting that the district court had not based its ruling on a potential ground about Interior’s authority, and stating: “In essence, the company argues that . . . the Interior Department ignored the purpose of the district court’s injunction. If the purpose were to assure the resumption of operations until further court order, it was not clearly set out in the injunction.” Id. at 12. A dissent criticized the majority for “making unreasonably restrictive fact findings of its own to reach an narrow and unworkably technical result.” Id. at 22. The Washington Post covers the case here.
In the case of In re Hermesmeyer, No. 16-11189 (May 2, 2017, unpublished), the Fifth Circuit found no abuse of discretion in the $500 sanction imposed by the district court as a result of the below Q-and-A between the court and counsel:
THE COURT: Okay. Let’s see. There were some—there were two objections filed, and I believe both of them were related to the possibility of a sentence above the top of the advisory guideline range. Did I read those correctly, Mr. Hermesmeyer?
MR. HERMESMEYER: Your Honor, I think they have more to do with legality of whether such a sentence would be permissible or appropriate.
THE COURT: I’m sorry, I was wondering if I’m correct in thinking that both of the objections have to do with the possibility of a sentence above the top of the advisory guideline range. What is the answer to that?
MR. HERMESMEYER: Your Honor, just what I said.
THE COURT: I’m not sure I understand how that answered my question. I’ve asked the question again. Would you please answer the question either yes or no.
MR. HERMESMEYER: Your Honor, I would stand on what I previously said. Thank you.
THE COURT: Mr. Hermesmeyer, you get very close to being held in contempt of court. Would you answer my question?
MR. HERMESMEYER: I have no further response, your Honor.
THE COURT: Okay. Mr. Hermesmeyer, I’ve ordered you to answer my question, and you’ve refused to answer it. I conside that you’re in civil contempt of court, and also you’re in violation of one of the local rules that requires attorneys to appropriately conduct themselves and to respond and answer orders of the Court. I’m going to give you another opportunity to answer my question. And if you would like, if you decline to answer my question, I’ll give you an opportunity at this time to respond to my suggestion that you will be held in civil contempt of court and held in violation of the local rule concerning the conduct of attorneys, if you refuse to answer my question. You may proceed.
[Pause in proceedings.]
THE COURT: Okay. Apparently you’re not going to respond. I’m ordering that you are in violation of the local rule. Let me get the exact number of it.
HERMESMEYER: Your Honor, at this point I would move to withdraw from the representation of [the defendant] given the indications that the Court has made. [He] needs an attorney that’s not under the threat of civil contempt or whatever sort of contempt
that the Court is indicating at this point.
THE COURT: I deny that motion. Rule of Criminal Procedure LCR 57.8(b) says: A presiding judge, after giving an opportunity to show cause to the contrary, may take any appropriate disciplinary action against a member of the bar for conduct unbecoming a member of the bar and failure to comply with any order of the Court. I consider that you have violated that rule in both respects. I’ll give you an opportunity—I’ve given you an opportunity to show cause why you shouldn’t be disciplined for that and you’ve declined to respond, so I’m ordering that you pay a $500 fine, and that it be paid by 2:00 today, and be paid to the office of the clerk of court here in Fort Worth.
Continuing a line of cases involving careful scrutiny of injunctions by the Fifth Circuit, the Court again took issue with an order in Scott v. Schedler. The district court required Tom Schedler, Louisiana’s Secretary of State, to “maintain in force and effect his or her policies, procedures, and directives, as revised, relative to the implementation of the [National Voter Registration Act of 1993] with respect [to] coordination of the [Act] within Louisiana.” Schedler objected that the order was not sufficiently specific and the Fifth Circuit agreed: “[T]he injunction refers generally to the defendant’s policies without defining what those policies are or how they can be identified.” Noting that “[w]e are sensitive, of course, to the district court’s difficult position” in drafting a specific injunction without “dictating with intricate precision” state policy, the Court reviewed case law in the area and offered some guidance for remand. No. 15-30652 (June 15, 2016). While arising in the civil rights context, and not involving an effort to hold the Secretary in contempt, this opinion follows naturally from several other recent cases (link above) that have found insufficient specificity to justify sanctions.
Waste Management sued Kattler, a former employee, for misappropriating confidential information and other related claims. A dispute about what information Kattler had in is possession expanded to include a contempt finding against Kattler’s attorney, Moore. Waste Management v. Kattler, No. 13-20356 (Jan. 15, 2015). The Fifth Circuit reversed, reasoning as follows:
1. The order setting a hearing referenced a motion, by Pacer docket number, that only sought relief against Kattler and not the attorney. It was not an adequate “show-cause order naming [both] Moore and Kattler as alleged contemnors[.]”
2. On the merits, the Court found that Kattler had misled Moore as to the existence of a particular “San Disk thumb drive,” that Moore had acted prudently in consulting ethics counsel and withdrawing after he learned of the untruthfulness, and that new counsel made a prompt disclosure about the drive that avoided unfair prejudice. This part of the opinion reviews Circuit authority about the failure to correct incorrect court filings.
3. Also on the merits, “while Moore clearly failed to comply with the terms of the December 20 preliminary injunction by not producing the iPad image directly to [Waste Management] by December 22, this failure is excusable because the order required Moore to violate the attorney-client privilege.” Further, the relevant order only “required Kattler to produce an image of the device only, not the device itself,” which created a “degree of confusion” that excused the decision not to produce the actual iPad.
The Court released a revised opinion in Hornbeck Offshore Services LLC v. Salazar, which reversed a finding of civil contempt against the Department of Interior about the deepwater drilling moratorium after the Deepwater Horizon incident. No. 11-30936 (Nov. 27, 2012, revised April 9, 2013). The new opinion is streamlined to answer concerns of the original dissent; a revised dissent acknowledges those revisions but still expresses concern that “the majority opinion’s approach may give incentive for litigants creatively to circumvent district court orders.”
The judgment debtors in Seven Arts Pictures v. Jonesfilm were found in civil contempt for failure to answer postjudgment discovery and other issues about enforcement of a judgment. No. 11-31124 (Feb. 18, 2013, unpublished). The Fifth Circuit affirmed, finding that the district court had general personal jurisdiction over the debtors, that the debtors had waived arguments about the orders by not timely and properly objecting below, and that the district court did not abuse its discretion in awarding $21 thousand in attorneys fees. While the holdings on jurisdiction, waiver, and attorneys fees draw heavily from the specific facts of the case, the legal framework used is of broad applicability. Footnote 7 acknowledges the unusual procedural posture of the jurisdiction issue, which had not been raised until after the notice of appeal was filed.