Declaring a split with the Second Circuit, the Eleventh Circuit in In re Grand Jury Subpoena, FGJ-21-01-MIA, No. 21-13651 (11th Cir Jan. 31, 2023) holds that when a district court holds a party in civil contempt for failing to comply with a subpoena but enters no sanctions, the order is not an appealable final order.
“The government served Appellant with three subpoenas directed at three business entities for which he is the document custodian.” The party sought to quash, arguing Fifth Amendment privilege, but the “district court denied Appellant’s motion and, since Appellant refused to comply with the subpoenas, found Appellant in civil contempt. The district court stayed issuance of sanctions pending appeal.”
The panel holds that the contempt finding alone was not final and appealable. “We have held that contempt citations do not satisfy the final judgment rule unless there is both a finding of contempt and a noncontingent order of sanctions.” Yet the panel noted the Supreme Court’s decision in United States v. Ryan, 402 U.S. 530, 532 (1971), appeared to endorse the party’s ability to appeal in order to “contest the validity of the subpoena if he is subsequently cited for contempt on account of his failure to obey.”
Yet, according to the panel, “the Court did not contemplate the jurisdictional nuances of a sanction-less contempt order. Ryan and its progeny were not appeals of contempt citations at all; they were appeals of mere denials of motions to quash grand jury subpoenas. They thus do not purport to decide whether a civil contempt citation is directly appealable where the district court stays the consideration of sanctions pending appeal.”
“We also recognize that the Second Circuit has read Ryan differently, see In re Three Grand Jury Subpoenas, 847 F.2d 1024, 1027–28 (2d Cir. 1988), but we respectfully disagree. ‘A determination that contempt has occurred is not final if the question of sanctions is postponed. . . . Finality . . . requires determination of both liability and sanction, just as with ordinary civil and criminal proceedings.’ 15B Edward H. Cooper, Fed. Prac. & Proc. Jurisdiction § 3917 (2d ed, & June 2022 update).”
The proper answer, the panel notes, is for the district court to enter a sanction and then stay execution until after the appeal. “Such a procedure would still avoid piecemeal appeals and be consistent with the instruction to wait to appeal until there is ‘nothing for the [district] court to do but execute the judgment.’” The panel dismisses the appeal for lack of jurisdiction.