When Does the Contempt Clock Begin to Run?
Clarifying two questions in J.G.G.
Ever since Judge Boasberg prohibited federal officers from shipping prisoners to El Salvador, and the federal officers went ahead anyway, there has been litigation about whether the officers should be held in contempt. It has been a long and winding road, and I won’t review all of it here (for one recent order from the D.C. Circuit, see here; and for one earlier post on this blog, see Contempt, Equity, and the Boundaries of the United States).
In this post I will answer two legal questions that have sometimes come up in connection with these contempt proceedings.
First, is it contempt to disobey an oral command of the court, even before the written order has been filed?
Second, is it contempt to act on the persons or property that are the subject of the suit, in order to deprive the court of jurisdiction, even before there has been an injunction prohibiting the action?
The answer to both questions is yes.
On the first question, the issue is the timing of the court’s order and the notice received by the potential contemnor. Writtenness of the order is irrelevant. James High is clear on this point in his Treatise on the Law of Injunctions:
In considering the question of a defendant’s liability for breach of injunction, it is to be borne in mind that the injunction becomes operative from the time of the order being made, and not from the date of the writ itself, or from the time of its being drawn up. The mandate of the court being effectual upon all parties having notice thereof from the time it is given, to fix defendant’s liability for a violation it is only necessary to show that he was actually apprised of the existence of the order at the time of committing the acts constituting the violation. Thus, where an injunction is granted to restrain the commission of waste, and before the writ actually issues, or the order is drawn up, defendant is notified of the order, and its purport and effect are verbally explained to him, the cutting of timber after such notice constitutes a breach of the injunction.
2 James L. High, A Treatise on the Law of Injunctions § 1421, at 1100 (3d ed. 1890). And:
If defendant is informed of the existence of the order, although not yet served with process, it becomes operative upon him, and he will not be allowed to disregard or violate it. It is enough to show that he has had actual notice of the existence of the writ, or of the order of the court that it should issue. And one who has received notice of the order for an injunction may be guilty of a breach of the mandate of the court and may be punished for contempt, even though the writ has not yet issued. Otherwise, the opportunity would be afforded of committing with impunity violations of the injunction between the time of ordering the writ and the time of its issuing, and thus the very acts would be permitted which it is the object of the injunction to prevent.
Id. § 1422, at 1102.
On the second question, even before the court issues an injunction it is contempt for a person to try to deprive the court of jurisdiction by acting on the person or property that is the subject of the suit.
In Remedies for a Constitutional Crisis, a forthcoming paper with Will Baude and Marin Levy, we have the following footnote:
Compare J.G.G. v. Trump, ___ F.4th ___, 2025 WL 2264614 at *6-*11 (Katsas, J., concurring) (concluding that order was ambiguous and so government officials did not violate it); with id. at *36-*38 (Pillard, J., dissenting) (concluding that government officials violated an unambiguous order). Incidentally there is also precedent, not discussed by the D.C. Circuit, for holding a litigant in contempt “for performing otherwise legal actions that frustrate the potential efficacy of future orders the court may enter.” Michael Morley, Erroneous Injunctions, 71 Emory L. J. 1185 (2022); see also Hugh B. Cox, The Void Order and the Duty to Obey, 16 U. Chi. L. Rev. 86, 102-103 (1948). This description may fit the J.G.G.case.
The Morley article discusses two cases, Merrimack River Sav. Bank v. City of Clay Center, 219 U.S. 527 (1911) and Griffin v. County School Board, 347 U.S. 483 (1954). Morley writes:
The Supreme Court has held that, under certain narrow circumstances, federal courts may hold a litigant in contempt for performing otherwise legal actions that frustrate the potential efficacy of future orders the court may enter.324 In other words, a party may be held in contempt, even where the court has not yet issued any injunction, for undermining a potential future order that does not--and may never--exist. For example, in Merrimack River Savings Bank v. Clay Center, the plaintiff was a bank that had loaned money to a local power company; the loan was secured by the power company’s poles and wires in a certain municipality.325 The municipality ended the power company’s franchise and threatened to remove its poles and wires.326 The bank sued the municipality, claiming that the municipality lacked authority to terminate the power company’s franchise.327 The bank won a temporary injunction from the trial court “to prevent the destruction of the lines of poles and wires as threatened.”328 The bank then lost, both at the trial court and on direct appeal to the Supreme Court.329
Before the time for petitioning the Supreme Court for rehearing had elapsed, the municipality cut down and removed the power company’s poles and wires.330 The bank filed a petition asking the Supreme Court to hold the municipality in contempt.331 The municipality pointed out that the Court had not entered any injunctions or orders that it could be accused of violating.332 The Court declined to decide whether the municipality had violated the trial court’s temporary injunction.333 It held instead that “irrespective of any such injunction actually issued[,] the willful removal beyond the reach of the court of the subject-matter of the litigation or its destruction pending an appeal ... is, in and of itself, a contempt of the appellate jurisdiction of this court.”334 The Court went on to hold that the municipality had committed a “technical contempt” by destroying the poles and wires.335 It concluded, however, that the municipality had acted in good faith and its contempt was inadvertent since it had not anticipated the possibility that the bank would petition for rehearing.336 The Court therefore declined to impose contempt sanctions.337
The U.S. Court of Appeals for the Fourth Circuit went on to apply this approach in Griffin v. County School Board.338 Several years after Brown v. Board of Education held racially segregated schools unconstitutional,339 a federal district court entered an injunction prohibiting Prince Edward County, Virginia, from paying tuition grants to subsidize private schooling for white children until the county’s public schools were desegregated and reopened.340 In a later ruling, the district court ordered the county to appropriate the funds necessary to reopen the public schools on a desegregated basis.341
The plaintiffs had also asked the district court to continue prohibiting the county from funding tuition grants in upcoming academic years for the private education of white students.342 They wanted the county to use those funds to supplement the public school’s funding instead.343 The district court denied those aspects of the plaintiffs’ request, and they appealed.344 The Chief Judge of the U.S. Court of Appeals for the Fourth Circuit directed the court clerk to ask the county to stipulate that it would voluntarily refrain from issuing tuition grants while the appeal was pending, but the county refused.345 In the meantime, the county rushed to process 1,217 grant applications and distributed about $180,000 within a day of the court’s request.346
The plaintiffs moved to hold the county in contempt, even though it had not violated any court order and had expressly declined the court’s request.347 The Fourth Circuit held the members of the county board of supervisors in contempt.348 It explained that, while the appeal was pending, the funds for tuition grants were “wholly subject to [the Fourth Circuit’s] orders.”349 By making grants to white parents, the board had placed the funds “beyond its control as well as that of the court.”350 The board’s actions, the court ruled, were “an arrogation of this court’s responsibility” because their “aim was to thwart the impact of any adverse decree which might ultimately be forthcoming on the appeal.”351 Thus, the Fourth Circuit effectively held the board members in contempt for violating an injunction that the district court had refused to enter and that the appellate court had not entered.352
In Merrimack and Griffin, the courts claimed inherent authority, even in the absence of a written order, to punish contempts for acts that interfere with the property at issue in a case and reduce or eliminate the value of potential future orders that a court might later enter concerning that property. A court may likewise claim authority to prohibit prosecutions or other enforcement actions with a punitive component based on violations of a legal provision that occur while that provision is enjoined, even absent a written order to that effect. Such retroactive prosecutions following an injunction’s dissolution substantially reduce the overall value and practical effects of a court’s injunctions in public law cases. The possibility of such prosecutions allows enjoined legal provisions to continue exerting a chilling effect, immune to judicial reduction, on plaintiffs’ exercise of their claimed rights. Moreover, rightsholders may be deterred from attempting to seek judicial relief since, even if a court issues an injunction, the rightsholders would remain subject to prosecution if the order is reversed on appeal or otherwise dissolved. Thus, to preserve the efficacy of its orders, particularly in constitutional litigation, a court might assert inherent authority to bar the government from retroactively pursuing punitive enforcement measures against a temporarily successful plaintiff, even without an explicit order setting forth such permanent restrictions.
Michael T. Morley, Erroneous Injunctions, 71 Emory L.J. 1137, 1185–88 (2022).
An older law review article by Hugh Cox, The Void Order and the Duty to Obey, has a similar discussion of United States v. Shipp, 203 U.S. 563 (1906):
In that case Johnson had been tried, convicted and sentenced to death by a court of the state of Tennessee. He petitioned a United States circuit court for a writ of habeas corpus on the ground that in the course of trial he had been deprived of his rights under the federal Constitution. The circuit court denied the writ and Johnson appealed to the Supreme Court, which allowed the appeal. Pending the appeal, the Supreme Court issued an order staying all proceedings against Johnson and directing Shipp, who was sheriff of a county in Tennessee, to retain custody of Johnson. Johnson was thereafter taken from jail and lynched. Shipp, together with others, was charged with contempt of the Supreme Court. Shipp denied the jurisdiction of the Supreme Court to punish for contempt on the ground that the constitutional questions raised by Johnson in support of his petition for a writ of habeas corpus were frivolous and that accordingly neither the circuit court nor the Supreme Court had jurisdiction of the cause. The Supreme Court rejected this contention.
The decision in the Shipp case can hardly be regarded as an unqualified application of the doctrine of jurisdiction to determine jurisdiction. To the extent that it embodies or applies that notion at all, it deals with a special kind of jurisdiction. In that case the order that was vindicated was not an order made by the lower federal court but an order made by the Supreme Court in aid of its own appellate jurisdiction. The Supreme Court held, in effect, that it had appellate jurisdiction regardless of the question of the jurisdiction of the lower court, and that, therefore, the order that it had made in aid of its own jurisdiction was not void. The conclusion that the Supreme Court had appellate jurisdiction regardless of the jurisdiction of the lower court was consistent with decisions of the Supreme Court both before and after In re Shipp.
One other aspect of In re Shipp deserves comment. Doubtless the petitioners in the Shipp case had violated that part of the order of the Supreme Court that directed “that... custody of said appellant be retained pending this appeal.” But the gravamen of the charge against Shipp and the other petitioners was not merely that Shipp had failed to retain custody of the prisoner, but that Shipp and the others had conspired to destroy Johnson so that the appellate power of the Supreme Court was rendered wholly nugatory. It seems quite possible that even in the absence of the order petitioners could have been punished for contempt of court. The destruction of the subject matter of litigation is a direct, violent and irrevocable interference with the judicial process. It would not be unreasonable to say that the criminality of that kind of contempt does not depend upon the existence of a court order forbidding the destruction.
Hugh B. Cox, The Void Order and the Duty to Obey, 16 U. Chi. L. Rev. 86, 101-103 (1948) (footnotes omitted). Cox has a footnote discussing Merrimack, as well as this footnote at the end of the quoted portion:
Justice Holmes, both in his opinion in the Shipp case and in his subsequent opinion in Jones v. Springer, 226 U.S. 148, 155-56 (1912), referred to the authority exercised in the Shipp case as a power arising “from the necessity of the case,” and one whose exercise was necessary “to preserve” the subject matter of the litigation.
Similarly, Wright and Miller lays out the rule that there has to be an order for there to be contempt, but with the depriving-the-court-of-jurisdiction exception, quoting both Shipp and Griffin:
One who violated a preliminary order could be punished for contempt only if the court ultimately were found to have jurisdiction of the merits. The sole exception to this rule was when the violation of the order operated in itself to defeat the jurisdiction of the court, such as by destroying the object of the dispute and thereby making the case moot.
Wright & MIller, 13D Fed. Prac. & Proc. Juris. § 3537 (3d ed.). The supporting footnote:
Would defeat jurisdiction
In U.S. v. Shipp, 203 U.S. 563, 573, 27 S. Ct. 165, 166, 51 L. Ed. 319 (1906), the Supreme Court had allowed an appeal from the denial of habeas corpus by a United States circuit court and had stayed all proceedings pending appeal. While the appeal was pending, the prisoner was taken from jail and lynched. Shipp, the sheriff who was charged with contempt for conspiring with others to permit the lynching, sought unsuccessfully to defend on the ground that the Supreme Court had no jurisdiction to issue a stay because the federal questions on which relief was sought were frivolous and a mere pretense.
See also
Griffin v. County School Bd. of Prince Edward County, Va., 363 F.2d 206, 210–212 (4th Cir. 1966), cert. denied, 385 U.S. 960, 87 S. Ct. 395, 17 L. Ed. 2d 305 (1966), noted 1966, 52 Va.L.Rev. 1556, 1967, 24 Wash. & Lee L.Rev. 119. The court held that it is civil contempt to disburse a fund at a time when the appellate court has before it an application to prevent the disbursement, although no injunction yet has issued.
There is an interesting discussion of the case in Rendleman, Compensatory Contempt to Collect Money, 1980, 41 Ohio St.L.J. 625, 631–635.
Finally, it’s worth noting that even though contempt against government officials is often an unsatisfactory business (as ably recounted by Nick Parillo in his already classic article), the law of contempt has no government-officer exception. “A breach of an injunction, amounting to contempt, may be committed even by aiding one who acts in an official capacity and under authority of law.” Bate Refrigerating Co. v. Gillett, 30 F. 683, 685 (C.C.D.N.J. 1887) (citing Woodward v. Earl Lincoln [1674] 3 Swanst. 626; 2 High. Inj. § 1435).