Securities & Exchange Commission v. Kirkland
2008 U.S. App. LEXIS 14495 · 2008 WL 2653634 · 533 F.3d 1323
July 8, 2008 · Docket 07-15255
Headnotes
Generated summaries- Headnote 1
The court notes that appellate jurisdiction is limited to “final decisions,” citing the statutory requirement and rejecting the appeal of the contempt order because it was not final.
- Headnote 2
The district court’s contempt order required Kirkland to repay $3,957.73 in installments; the court held the sanction was remedial, intended to purge the violation, and therefore the order was not appealable.
- Headnote 3
The opinion cites Howard Johnson, stating that when a contempt sanction is a fine that must be obeyed and cannot be avoided by other performance, the order is immediately appealable.
- Headnote 4
The court concluded it lacked jurisdiction over the civil‑contempt order and therefore dismissed Kirkland’s appeal for lack of jurisdiction.
- Headnote 5
The opinion references Don’s Porta Signs, noting that the presence of a sanction is required before a contempt order can be appealed, and that a remedial, modifiable sanction does not satisfy that prerequisite.
- Headnote 6
The court reiterates that only a final judgment may be appealed to a court of appeals; interim orders are generally not reviewable.
- Headnote 7
The district court’s contempt order was entered during the ongoing securities‑fraud proceeding, so the appellate court treated it as non‑final.
- Headnote 8
The sanction required Kirkland to repay the $3,957.73 in two installments, which the court classified as a purge‑the‑contempt remedy rather than a punitive fine.
- Headnote 9
The Eleventh Circuit requires that a contempt order first carry a sanction before an appeal can be entertained, as noted in Don’s Porta Signs.
- Headnote 10
The court warned that appellate intervention would ‘tie the hands’ of the district court and hinder compliance with the contempt order.
- Headnote 11
The court cited Hickey as persuasive authority that repayment orders are remedial and therefore interlocutory.
- Headnote 12
The court concluded that the remedial sanction did not make the contempt order final, so the appeal was barred under § 1291.
- Headnote 13
The court notes that appellate jurisdiction is limited to final decisions, citing the statutory requirement for finality before an appellate court may entertain a case.
- Headnote 14
The court emphasizes that when the contempt sanction merely allows the party to purge the violation by compliance, the order does not qualify as a final, appealable judgment.
- Headnote 15
The Eleventh Circuit holds that the appealability of a contempt order hinges on whether the sanction is irrevocable and punitive, rather than a remedial measure that the contemnor can satisfy.
- Headnote 16
The opinion states that the district court’s contempt order is not a final judgment; therefore, the circuit court cannot review it and dismisses the appeal for lack of jurisdiction.
- Headnote 17
The court cites Don’s Porta Signs, noting that a contempt order must contain an enforceable sanction before an appellate court can consider jurisdiction.
- Headnote 18
The opinion relies on Hickey to reinforce that a remedial repayment order is interlocutory and therefore not subject to immediate appeal.
Opinion
Patrick Kirkland appeals a finding of contempt and remedial sanction that followed his alleged violation of an asset freeze, which was entered after the Securities and Exchange Commission filed a complaint against Kirkland. Because we lack jurisdiction over the order of civil contempt entered by the district court, we dismiss this appeal.
In 2006, the Commission filed a complaint against Kirkland and three companies controlled by him. The complaint alleged that Kirkland had fraudulently enticed investors to buy unregistered securities in real-estate developments. The complaint requested a restraining order, a freeze of assets, the appointment of a receiver, disgorgement, and civil penalties. The district court entered a freeze of assets and appointed a receiver.
In 2007, the Commission and the Receiver filed a joint motion for an order to show cause why Kirkland should not be held in contempt for violating the asset freeze. The motion alleged that Kirkland had cashed two checks issued by his bank in knowing violation of the asset freeze. The total of the two checks was $3,957.73.
The district court later entered an order that found Kirkland in civil contempt. It found that Kirkland had “willfully violated the asset freeze by contacting Ohio Savings Bank, instructing the Bank to stop payment on two checks and mail replacement checks directly to him, and cashing the checks.” The court imposed a “remedial sanction” that required Kirkland to repay the total of the two checks in two equal installments by December 26, 2007. Kirkland then filed this appeal.
Appellate jurisdiction ordinarily is limited to “final decisions.” 28 U.S.C. § 1291. A finding of civil contempt against a party to an ongoing proceeding is interlocutory and not appealable until a final decree is issued, subject to several exceptions. Howard Johnson Co. v. Khimani, 892 F.2d 1512, 1515 (11th Cir.1990). An order that imposes a fine or penalty for contempt that must be obeyed within a certain period and may not be avoided by some other form of compliance is immediately appealable, but an order of contempt that imposes a fine or penalty that the party in contempt can avoid by complying with the earlier order is interlocutory and not appealable. Combs v. Ryan’s Coal Co., 785 F.2d 970, 976 (11th Cir.1986). Where the district court is engaged in an “ongoing intervention,” as evidenced by a contempt order that is “subject to modification or appeal,” the effect of intervention by an appellate court would be “to tie the hands of the district court, diminish compliance with its orders, and augment [the appellate court’s] own workload.” Id. at 977. “The imposition of .sanctions ... is a prerequisite for appellate review of a contempt order.” Don’s Porta Signs, Inc. v. City of Clearwater, 829 F.2d 1051, 1053 n. 7 (11th Cir.1987).
The order of civil contempt entered by the district court is interlocutory and not appealable. The remedial sanction is intended to allow Kirkland to purge himself of his contemptuous conduct and comply with the asset freeze. “Appellate review ... would be disruptive of what [is] obviously a continuing effort on the part of the district court to prod [Kirkland] into compliance.” Combs, 785 F.2d at 976. It is not a sanction that is immediately ap-pealable.
One of our sister circuits has reached the same conclusion in this circumstance. In Securities & Exchange Commission v. Hickey, 322 F.3d 1123, 1127-28 (9th Cir. 2003), the Ninth Circuit concluded that an order to repay money taken in violation of an asset freeze was not a sanction but instead allowed a defendant the “opportunity to purge himself’ of his contempt by paying the money owed within a certain period. Id. The Hickey court dismissed the appeal of the remedial order because it was interlocutory and not immediately ap-pealable. Id.
We dismiss Kirkland’s appeal for lack of jurisdiction.
DISMISSED.