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No. 07-1254

 

In the Supreme Court of the United States

GLENN F. STRAUB, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

GREGORY G. GARRE
Acting Solicitor General
Counsel of Record
MATTHEW W. FRIEDRICH
Acting Assistant Attorney
General
JOSEPH F. PALMER
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether a district court has authority to punish as criminal contempt the willful violation of an order that the court entered before determining that it lacked jur isdiction in the underlying action.

In the Supreme Court of the United States

No. 07-1254

GLENN F. STRAUB, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-16) is reported at 508 F.3d 1003. The opinion of the district court (Pet. App. 17-29) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on November 29, 2007. A petition for rehearing was denied on January 3, 2008 (Pet. App. 30-31). The petition for a writ of certiorari was filed on April 1, 2008. The juris diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a bench trial in the United States District Court for the Southern District of Florida, petitioner was convicted of criminal contempt in violation of 18 U.S.C. 401(3). He was sentenced to 40 hours of community service. The court of appeals affirmed. Pet. App. 1-16.

1. Petitioner was president of Broward Yachts, Inc. (Broward). Broward provided storage services for the hull of a partially completed yacht owned by Seagrove Trading, Inc. To recover unpaid fees, Broward filed an in rem suit against the hull. In 2003, the district court dismissed the suit for lack of subject matter jurisdiction, on the ground that the hull was not a "vessel" for pur poses of maritime jurisdiction. The court of appeals af firmed that dismissal. Pet. App. 2-3; see Broward Yachts v. Vessel Known as Destiny Hull, 107 Fed. Appx. 183 (11th Cir. 2004) (Table).

In March 2003, while the in rem suit was still pend ing, the district court issued an arrest warrant for the hull and ordered Broward to release it in exchange for a bond posted by Seagrove. The parties could not agree on the logistical details of removing the hull from Brow ard's premises, which required the use of a boat-moving vehicle called a Travelift. Following hearings, telephone conferences, and a series of orders clarifying the parties' respective obligations during the transfer, the court is sued a detailed order governing the procedures for transferring the hull that specifically prohibited peti tioner from being on the premises during the removal:

ORDERED that Broward shall make the Trave lift available to Seagrove's Contractors * * * for use in moving [the hull] from Broward's shed into the water. Seagrove may also use cranes, trucks or other equipment necessary to assist in the removal of the hull, engines, and any of its other property still located on Broward's premises, and Broward shall provide Seagrove's Contractors full access to its pre mises, including the launching facilities, for such pur poses. Upon placement of [the hull] in the water, Seagrove will be responsible for towing [it] to an other location of its choosing. Seagrove will provide Mega Marine [Yacht Service, Inc.] and Broward twenty four hours' written notice of its intent to use the Travelift.

IT IS FURTHER ORDERED that the United States Marshal is hereby directed to use such force as may be necessary to ensure that Seagrove's Con tractors have the unobstructed use of the Travelift and have unobstructed access to Broward's premises and the launching facilities as ordered herein until [the hull], the engines, and Seagrove's other prop erty are removed from Broward's premises, and to prevent any party, third party, or other person or entity from interfering with, or otherwise obstruct ing or preventing the move from taking place when Seagrove's Contractors are mobilized.

. . . .

IT IS FURTHER ORDERED that [petitioner] Mr. Glenn Straub shall not interfere in any manner with the removal of [the hull] and Seagrove's other property, and shall not be present on Broward's pre mises during the removal.

Pet. App. 3-4; see id. at 19-20.

The following day, the district court issued another order clarifying that Broward and Mega Marine-a yacht repair company that owned the Travelift-were required to make the Travelift available on 24 hours' notice and that failure to comply would result in peti tioner being held in contempt of court. Pet. App. 20.

On April 18, 2003, workers removed the hull. Four Deputy United States Marshals supervised the removal. Workers moved the hull into the water, tied it to a slip, and then waited for tow boats to take the hull away. During the delay, petitioner arrived at the facility and complained to one of the Deputies that the delay was causing him to lose money. The Deputy read to peti tioner the portions of the order that prohibited him from being on the premises during the removal. The Deputy told petitioner that he would be held in contempt if he did not leave the premises and that he could not take his personal belongings with him if he were arrested. Peti tioner responded that he was not going to leave, and, at the suggestion of the Deputy, petitioner went inside the Broward building to leave his personal effects. When petitioner came outside, the Deputy again asked him to leave, but petitioner refused, claiming that he was al ready under arrest. The Deputy clarified that petitioner was not yet under arrest and that he could avoid arrest if he waited in the parking lot. Petitioner again refused to leave, and the Deputy arrested him. Pet. App. 4-5, 20-22.

2. Following a bench trial before a magistrate judge, petitioner was convicted of criminal contempt, in viola tion of 18 U.S.C. 401(3). The district court affirmed peti tioner's conviction. Pet. App. 17-29.

3. The court of appeals also affirmed. Pet. App. 1- 16. The court considered sua sponte whether the dis trict court had authority to punish as criminal contempt the willful violation of an order entered in a suit that was ultimately dismissed for lack of jurisdiction. Relying on Willy v. Coastal Corp., 503 U.S. 131 (1992), the court of appeals concluded that the district court did have that authority. In Willy, this Court held that a district court has the authority to impose sanctions under Federal Rule of Civil Procedure 11 for conduct during a proceed ing over which the court lacked subject matter jurisdic tion. Pet. App. 7-8. The court of appeals concluded that Willy's reasoning applied equally to criminal contempt. First, the court observed that, "as with Rule 11 sanc tions, the adjudication of a charge of criminal contempt does not require an assessment of the legal merits of the underlying controversy, so the court that hears the criminal contempt charge does not adjudicate a contro versy over which it lacks jurisdiction." Id. at 8. Second, the court noted that, again as with Rule 11 sanctions, "a sanction for criminal contempt is punitive and aims to vindicate the authority of the court." Id. at 8-9. The court of appeals contrasted a court's interest in criminal contempt-which serves the court's ongoing interest in "parties' obedience to its authority," id. at 8-with the purpose of civil contempt, which "is remedial and aims to force compliance with an order of the court," id. at 9, and thus "disappear[s] if the court lacks subject matter jurisdiction," id. at 8.

The court of appeals concluded that this Court's deci sions in Ex parte Fisk, 113 U.S. 713 (1885), and In re Green, 369 U.S. 689 (1962), were inapposite. The court noted that in Fisk, there was no question as to subject matter jurisdiction over the underlying suit; rather, the sanctions in that case were invalid because a federal statute prohibited the district court from issuing the specific order whose violation led to the sanctions. Pet. App. 9. And the court explained that Green held that a state court had violated a defendant's due process rights by holding him in contempt of an order without holding a hearing to determine whether the order was pre empted by federal law. Id. at 10. The court of appeals concluded that neither case was analogous to peti tioner's case, because here the district court issued an order that was otherwise valid except that the court later determined that it lacked jurisdiction over the un derlying controversy. Ibid.

The court of appeals also rejected petitioner's chal lenges to the sufficiency of the evidence to support his conviction. Pet. App. 11-16.1

ARGUMENT

Petitioner contends that the district court lacked authority to punish him for criminal contempt for his willful violation of a court order because it was ulti mately determined that the court lacked jurisdiction over the suit in which it issued the order. The court of appeals' decision is correct, and further review is not warranted.

1. As petitioner acknowledges (Pet. 6-7), this Court has long maintained that a court may impose criminal contempt sanctions for violation of an order issued be fore it was determined that the court lacked jurisdiction over the case. See United States v. United Mine Work ers, 330 U.S. 258, 290-293 (1947); see also United States v. Shipp, 203 U.S. 563, 573 (1906). This Court reaf firmed that principle in Willy v. Coastal Corp., 503 U.S. 131 (1992). In Willy, the Court held that a district court has authority to impose Rule 11 sanctions for miscon duct in a case where the appellate court later ruled that the district court lacked subject matter jurisdiction. See id. at 132. In so holding, the Court cited with approval its conclusion in United Mine Workers that a court could impose criminal contempt sanctions even if it lacked jurisdiction over the underlying action, reasoning that the "same concern" expressed in United Mine Workers -"the maintenance of orderly procedure, even in the wake of a jurisdiction ruling later found to be mistaken" -justified upholding the Rule 11 sanctions. Id. at 137.

The Court in Willy set forth two rationales support ing a district court's authority to impose sanctions even when the court is later found to lack jurisdiction in the underlying action. First, the Court noted that Rule 11 sanctions are "collateral to the merits" and therefore do not "raise the issue of a district court adjudicating the merits of a 'case or controversy' over which it lacks juris diction." Willy, 503 U.S. at 137-138. Second, a court's purpose in imposing Rule 11 sanctions-to punish a party and promote respect for the court's authority- "does not disappear upon a subsequent determination that the court was without subject-matter jurisdiction." Id. at 139. That continuing purpose, the Court noted, stands in contrast with the interest underlying civil contempt-to force compliance with a court's decree- which dissipates if the court lacks jurisdiction. Id. at 138-139.

As the court of appeals observed (Pet. App. 7-9), be cause Rule 11 and criminal contempt sanctions share essentially the same purpose, the two Willy rationales apply with equal force to criminal contempt. First, a criminal contempt proceeding is collateral to and sepa rate from the underlying suit. See Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 444-445 (1911) (civil contempt is "a part of the main cause" between "the original parties," while criminal contempt is between "the public and the defendant, and [is] not a part of the original cause"). Second, like Rule 11 sanctions, the pur pose of criminal contempt is to punish the violator and to vindicate the court's authority. Id. at 441. Thus, given the essential similarity between Rule 11 sanctions and criminal contempt, the court of appeals correctly held (Pet. App. 10) that this Court's decision in Willy controls the outcome in this case.

2. Petitioner seeks to avoid that conclusion by con tending (Pet. 7-9) that a court may only punish violations of an order that was necessary to maintain the status quo while the court determined whether it had jurisdic tion and that the order petitioner violated was not neces sary in that sense. That contention is without merit.

a. Contrary to petitioner's suggestion, this Court's precedents do not limit the contempt authority of a court (in cases in which the court ultimately lacks jurisdiction) to violations of orders necessary to maintain the status quo. Although this Court in United Mine Workers and Shipp reasoned that the need to protect a court's au thority to issue orders "preserv[ing] the existing condi tions and the subject of the petition," see United Mine Workers, 330 U.S. at 292, was among the rationales un derlying a court's criminal contempt power in that con text, the Court in United Mine Workers suggested that, until a court definitively rules that it lacks jurisdiction, a willful violation of any of its orders may validly be pun ished through criminal contempt. See id. at 294-295 (The court's orders "outstanding or issued after [the court assumed jurisdiction] were to be obeyed until they expired or were set aside by appropriate proceedings, appellate or otherwise. Convictions for criminal con tempt intervening before that time may stand.").

In addition, Willy did not limit a court's authority under Rule 11 to conduct that impeded the court's effort to preserve the status quo while it determined whether it had jurisdiction. Indeed, the Court expressly pointed out that "[n]one of the sanctionable conduct was related to petitioner's initial effort to convince the District Court that it was without subject-matter jurisdiction." Willy, 503 U.S. at 133. Willy holds that a court's inter est in maintaining orderly proceedings justifies punish ment of misconduct that takes place during the case un til the court, or a subsequent appellate court, deter mines that jurisdiction is absent, without regard to whether the misconduct is related to the court's deter mination of its jurisdiction. See id. at 139.

The same principle applies in the criminal contempt context. As the Court in Willy pointed out, courts some times mistakenly assume they have jurisdiction, and until the court (or an appellate court) concludes other wise, there is no constitutional principle, or even sensi ble reason, that prevents the court in the interim from requiring compliance with its orders and punishing will ful violations. See 503 U.S. at 139; see also Szabo Food Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 1078 (7th Cir. 1987) ("[A] court has jurisdiction to determine its jurisdiction and therefore may engage in all the usual judicial acts, even though it has no power to decide the case on the merits. It may supervise discovery, hold a trial, and order the payment of costs at the end."), cert. dismissed, 485 U.S. 901 (1988). Thus, while a court is considering its jurisdiction, or is under the mistaken understanding that it has jurisdiction, it has authority to issue orders necessary to proceed with the case, and it may punish those who willfully flout those orders, re gardless of whether those orders are limited to preserv ing the status quo pending a determination of jurisdic tion.

b. In any event, even if a court's authority is limited to maintaining the status quo pending determination of its jurisdiction, the order that petitioner violated was related to the court's effort to do so. Broward brought the underlying suit as an in rem action. Pet. App. 2. In order to secure jurisdiction, the district court was re quired to issue a warrant and arrest the vessel. See R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 964 (4th Cir.) ("Only if the court has exclusive custody and con trol over the property does it have jurisdiction over the property so as to be able to adjudicate rights in it that are binding."), cert. denied, 528 U.S. 825 (1999). The district court did so. Pet. App. 18. The parties then agreed, in a joint motion, that the vessel should be re leased from arrest in exchange for Seagrove's posting of a bond. Id. at 3, 18. In maritime cases, substituting a bond from the owner as the res and releasing the vessel to its owner is a well-established procedure that protects the court's ability to grant relief while giving the plain tiff security of known and fixed value and allowing the owner to make productive use of his ship while the ac tion is pending. See, e.g., Ventura Packers, Inc. v. F/V Jeanine Kathleen, 424 F.3d 852, 859 (9th Cir. 2005). Accordingly, the district court's orders effectuating the release of the vessel to Seagrove in exchange for the bond were part and parcel of maintaining the status quo.

3. Petitioner further contends (Pet. 11) that the court of appeals' decision in this case conflicts with this Court's decisions in Ex parte Fisk, 113 U.S. 713 (1885), and In re Green, 369 U.S. 689 (1962). That contention is without merit.

As the court of appeals noted (Pet. App. 9-10), Fisk and Green are distinguishable. In Green, a state court held Green in contempt for violating an ex parte injunc tion prohibiting a union from picketing. The Court held that it violated the Due Process Clause "to convict a per son of a contempt of this nature without a hearing and an opportunity to establish that the state court was act ing in a field reserved exclusively by Congress for the federal agency." Green, 369 U.S. at 693. Here, there is no allegation that petitioner did not receive due process during his contempt proceedings.

In Fisk, the issue was not, as here, that the court lacked jurisdiction over the underlying case. Rather, this Court held that federal law precluded a federal court from issuing the order that the petitioner in that case was sanctioned for disobeying, namely an order to appear before a master for a deposition. Fisk, 113 U.S. at 724-726. See United Mine Workers, 330 U.S. at 291- 292 (distinguishing Fisk). At bottom, petitioner bases his claim of a conflict on the assertion (Pet. 11) that, re gardless of whether the district court had subject mat ter jurisdiction in the underlying action, the district court lacked authority to order the hull's release and to order petitioner not to interfere. But he offers no au thority or argument in support of that contention, and that factbound contention does not warrant review in any event.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

GREGORY G. GARRE
Acting Solicitor General
MATTHEW W. FRIEDRICH
Acting Assistant Attorney
General
JOSEPH F. PALMER
Attorney

 

 

JULY 2008

1 Petitioner does not renew those challenges in this Court.