Contempt, Equity, and the Boundaries of the United States

Equity does not stop at the water's edge

According to reporting by Josh Gerstein and Myah Ward at Politico, executive officers just defied the court order prohibiting the shipment of prisoners to El Salvador. The official explanation given for that defiance, again according to the reporting, is that the planes shipping the prisoners to El Salvador were already outside the territorial jurisdiction of the United States.¹ The two critical questions are (1) whether that is contempt of court, and (2) if so, what the district court should do about it. I take up the first of those questions here. The second question is harder.

One preliminary: for purposes of contempt enforcement, it is irrelevant whether the district court’s order was wise, legal, or constitutional. That is the import of the collateral bar rule.² If the court granting the injunction had jurisdiction and the enjoined party was on notice, a violation of the injunction is contempt. This is basic blackletter law.

I therefore take an argument that the planes carrying the prisoners were outside of the territorial jurisdiction of the United States to be a way of saying that they were therefore outside of the jurisdiction of the federal court, and thus that its order could be violated with impunity. Put differently, the argument attributed to the government officers is that the district court’s order could control their conduct only inside the territorial jurisdiction of the United States. That is wrong, and I see no way to avoid the conclusion that this is an open and shut case of contempt, which should be treated accordingly.

It has been settled since the middle of the eighteenth century that equity has extraterritorial reach. The classic case is Penn v. Lord Baltimore [1750] 27 Eng. Rep. 1132 (Chancery).³ The principle is even older than that, and can be found as far back as the late seventeenth century.⁴ The extraterritorial reach of equity was recognized by the U.S. Supreme Court in 1810 in a case about whether a federal court’s decree could run in a different state. Citing, among other things, “the celebrated case of Penn v. Lord Baltimore,” Chief Justice Marshall said “the principles of equity give a court jurisdiction wherever the person [i.e., the defendant] may be found.”⁵ A widely cited case for the extraterritorial reach of equitable decrees is The Salton Sea Cases, 172 F. 792 (9th Cir. 1909), where actions in Mexico were enjoined because they were damaging property within the United States. Similarly, the Supreme Court brusquely rejected a challenge to its ability to control extraterritorial acts in a case brought in its original jurisdiction in 1931:

Defendant contends that, as it dumps the garbage into the ocean and not within the waters of the United States or of New Jersey, this Court is without jurisdiction to grant the injunction. But the defendant is before the Court and the property of plaintiff and its citizens that is alleged to have been injured by such dumping is within the Court's territorial jurisdiction. The situs of the acts creating the nuisance, whether within or without the United States, is of no importance. Plaintiff seeks a decree in personam to prevent them in the future. The Court has jurisdiction.⁶

So far I have been citing authority to make clear that extraterritorial reach is a settled principle of equity. This principle is also grounded in how equity works. It is a basic maxim of equity jurisprudence that “equity acts in personam.” Although that maxim used to have much broader significance when there were divided jurisdictions, it remains illuminating about equity’s weakness and its strength. On the one hand, acting in personam, equity will tend not to redefine or rearrange rights, as much as it will control their exercise in order to avoid abuse.⁷ On the other hand, when equity latches on to you, it does not give up, and you cannot defeat it by moving your goods or yourself out of its jurisdiction.⁸ That is exactly the kind of opportunistic abuse of the law that attracts the attention of equity (a theme explored at length in Henry Smith’s excellent Equity as Meta-Law, 130 Yale L. J. 1050 (2021)).

Nor is the extraterritorial reach of equity an outdated principle. It is the basis for all antisuit injunctions that involve suits outside the geographic territory of the issuing court (whether a state court enjoining a plaintiff’s suit in another state, or a state or federal court enjoining a plaintiff’s suit in another country). And it is the basis for any extraterritorial injunction between private parties. If A sues B for trademark infringement, and establishes liability, the court may enjoin B’s infringement of A’s trademarks anywhere in the world. If a federal court could not control the actions of the parties outside of the territorial jurisdiction of the United States, those injunctions could never be issued.

One concluding point. Readers may be wondering if there is a tension between affirming equity’s extraterritorial reach and rejecting universal injunctions. But there isn’t. Despite the misleading nomenclature of spatial breadth (e.g., nationwide), the distinctive feature of universal injunctions has nothing to do with geographic scope. It’s about the extension of the court’s injunction beyond what is needed to protect the parties, reaching out to control how the defendant acts toward non-parties. The critique of universal injunctions has always been about extension to non-parties, not about geographic scope. In the trademark example in the preceding paragraph, the court can enjoin B’s infringement of A’s trademarks anywhere in the world; what it cannot do is go on to enjoin B from infringing the trademarks of C, D, and E (non-parties in the case).

Accordingly, Multiple Chancellors says this on page 436:

it has long been established that equity can enjoin extraterritorial acts.

And this on page 473:

even the equitable practices and principles that might seem to support national injunctions - such as the bill of peace 319 and the extraterritorial force of equitable decrees 320 - do not really do so once the facts of one Chancellor and equitable restraint are taken into account.

The supporting footnote (n.320) reads:

See Steele v. Bulova Watch Co., 344 U.S. 280, 289 (1952) (“[T]he District Court in exercising its equity powers may command persons properly before it to cease or perform acts outside its territorial jurisdiction.”); New Jersey v. City of New York, 283 U.S. 473, 482 (1931) (“The situs of the acts creating the nuisance, whether within or without the United States, is of no importance. Plaintiff seeks a decree in personam to prevent them in the future.”); Cole v. Cunningham, 133 U.S. 107, 116-21 (1890) (reviewing English and American cases); Massie v. Watts, 10 U.S. (6 Cranch) 148, 158 (1810) (“[T]he principles of equity give a court jurisdiction wherever the person may be found . .. .”); 2 STORY, supra note 39, § 899, at 230-32, 230 n.I, §§ 1290-1300, at 723-29. For further discussion, see supra note 19.

And the referenced footnote (n.19) reads in part:

. . . Such a solution has no basis in traditional equity. On the one hand, equity confined itself to controlling the defendant's behavior vis-a-vis the plaintiff. On the other hand, to protect the plaintiff, equity was willing to enjoin acts committed outside of the Chancellor’s territorial jurisdiction. Equity acts in personam. Geographical lines are simply not the stopping point. See sources cited infra note 320; see also Ameron, Inc. v. U.S. Army Corps of Eng’rs, 787 F.2d 875, 888, 890-91 (3 d Cir.), aff’d on reh’g, 809 F2d 979 (3 d Cir. 1986) (reversing injunction that controlled federal defendants' behavior within the District of New Jersey, in favor of an injunction controlling their behavior only against the plaintiff).

In short, it is clear in the law of equity that territorial jurisdiction is not in itself a restriction on the court’s ability to enjoin the conduct of the parties. An argument that the enjoined acts were outside the territory of the jurisdiction of the United States offers no defense for violating an injunction, and thus no defense against contempt enforcement.

1. The Politico story links to a page-long explanation provided by the Department of Justice refers to prisoners that had “already been removed from United States territory” before the court’s order, and the story quotes the White House press secretary to the same effect. The page-long explanation also refers to the Department of Justice’s objection to jurisdiction on grounds that it would infringe on Article II, but it is hard to see that as anything else than an objection that the injunction is unconstitutional. Under the collateral bar rule, the unconstitutionality of an injunction is a basis for requesting modification of the injunction or appealing it; it does not justify disobedience.

2. The classic case is Walker v. City of Birmingham, 388 U.S. 307 (1967). Although the doctrine has been criticized, see Randall Kennedy, Walker v. City of Birmingham Revisited, 2017 Sup. Ct. Rev. 313, it is well-established.

3. The case and its aftermath are summarized in Samuel L. Bray & Emily Sherwin, Ames, Chafee, and Re on Remedies: Cases and Materials 518-521 (4th ed. 2024).

4. Arglasse v. Muschamp [1682] 23 Eng. Rep. 322, 369 (Chancery). For an extract, see Bray & Sherwin, Ames, Chafee, and Re on Remedies 521-522.

5. Massie v. Watts, 10 U.S. (6 Cranch) 148, 158 (1810).

6. New Jersey v. City of New York, 283 U.S. 473, 482 (1931).

7. See Samuel L. Bray, Equity’s Role in Defining Property Rights, 13 Brigham-Kanner Property Rights J. 77 (2024).

8. The tenacity of equity is demonstrated by Chadwick v. Janecka, 312 F.3d 597 (3d Cir. 2002), where an attorney hid assets offshore to remove them from the marital estate during a divorce, and the Third Circuit (per Alito, J.) upheld his indefinite imprisonment. He eventually served 14 years in prison before being released at age 73. Bray & Sherwin, Ames, Chafee, and Re on Remedies 492. The fact that the assets were offshore was irrelevant.