USCA11 Case: 21-13651 Document: 38-1 Date Filed: 01/31/2023 Page: 1 of 6
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13651
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IN RE:
Grand Jury Subpoena, FGJ-21-01-MIA.
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Appeal from the United States District Court
for the Southern District of Florida
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Before WILSON, JORDAN, and BRASHER, Circuit Judges.
WILSON, Circuit Judge:
This case asks whether a finding of contempt absent the im-
position of sanctions is directly appealable. Because our precedent
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2 Opinion of the Court 21-13651
dictates that a contempt order must be accompanied by a noncon-
tingent sanction to be directly appealable, this case is DISMISSED
for lack of jurisdiction.
I.
The government served Appellant with three subpoenas di-
rected at three business entities for which he is the document cus-
todian. The subpoenas commanded the companies to appear and
testify before the Grand Jury, produce documents, and certify that
the records satisfied the business records exception to the hearsay
rule. See Fed. R. Evid 803(6).
Appellant moved to quash the subpoenas and asserted a
Fifth Amendment act-of-production privilege, arguing the re-
quested documents could incriminate him as the sole manager,
registered agent, owner, and operator of the companies. The dis-
trict 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. Ap-
pellant timely appealed.
II.
We are obligated to review our appellate jurisdiction sua
sponte “whenever jurisdiction may be lacking.” Reaves v. Sec’y,
Fla. Dep’t of Corr.,
717 F.3d 886, 905 (11th Cir. 2013). Federal ap-
pellate courts have jurisdiction to review “appeals from all final de-
cisions of the district courts of the United States.”
28 U.S.C. § 1291;
see also Cunningham v. Hamilton Cnty.,
527 U.S. 198, 203 (1999)
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21-13651 Opinion of the Court 3
(“Section 1291 of the Judicial Code generally vests courts of appeals
with jurisdiction over appeals from ‘final decisions’ of the district
courts.”). This is known as the final judgment rule, which
emphasizes the deference that appellate courts owe
to the trial judge as the individual initially called upon
to decide the many questions of law and fact that oc-
cur in the course of a trial. Permitting piecemeal ap-
peals would undermine the independence of the dis-
trict judge, as well as the special role that individual
plays in our judicial system. In addition, the rule is in
accordance with the sensible policy of “avoid[ing] the
obstruction to just claims that would come from per-
mitting the harassment and cost of a succession of
separate appeals from the various rulings to which a
litigation may give rise, from its initiation to entry of
judgment.” The rule also serves the important pur-
pose of promoting efficient judicial administration.
Firestone Tire & Rubber Co. v. Risjord,
449 U.S. 368, 374 (1981)
(alteration in original and internal citations omitted).
Typically, a decision is sufficiently final when it “ends the
litigation on the merits and leaves nothing for the court to do but
execute the judgment.” Van Cauwenberghe v. Biard,
486 U.S. 517,
521–22 (1988). However, the Supreme Court has “interpreted the
term ‘final decision’ in § 1291 to permit jurisdiction over appeals
from a small category of orders that do not terminate the litiga-
tion.” Cunningham,
527 U.S. at 204. These include decisions “that
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4 Opinion of the Court 21-13651
are effectively unreviewable on appeal from the final judgment in
the underlying action.”
Id. (quoting Swint v. Chambers Cnty.
Comm’n,
514 U.S. 35, 42 (1995)).
We have held that contempt citations do not satisfy the final
judgment rule unless there is both a finding of contempt and a non-
contingent order of sanctions. See U.S. Commodity Futures Trad-
ing Comm’n v. Escobio,
946 F.3d 1242, 1249 (11th Cir. 2020) (ex-
plaining that “[c]ontempt citations . . . are not immediately appeal-
able unless there is ‘both a finding of contempt and a noncontin-
gent order of sanction’”) (quoting Combs v. Ryan’s Coal Co.,
785
F.2d 970, 977 (11th Cir. 1986)); S.E.C. v. Kirkland,
533 F.3d 1323,
1325 (11th Cir. 2008) (“The imposition of sanctions . . . is a prereq-
uisite for appellate review of a contempt order.” (quoting Don’s
Porta Signs, Inc. v. City of Clearwater,
829 F.2d 1051, 1053 n.7 (11th
Cir. 1987))); Sizzler Fam. Steak Houses v. W. Sizzlin Steak House,
Inc.,
793 F.2d 1529, 1533 n.1 (11th Cir. 1986) (explaining that impo-
sition of sanction “rendered the contempt judgment final and made
both the finding of contempt and the later sanction appealable un-
der
28 U.S.C. § 1291”).
We recognize the Court in United States v. Ryan described
the two options for a recalcitrant witness as “either obey [the sub-
poena’s] commands or refuse to do so and contest the validity of
the subpoena if he is subsequently cited for contempt on account
of his failure to obey.”
402 U.S. 530, 532 (1971); see also, e.g., In re
Grand Jury Proc.,
832 F.2d 554, 558 (11th Cir. 1987) (“[O]rders
denying motions to quash grand jury subpoenas are ordinarily not
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21-13651 Opinion of the Court 5
appealable final orders under section 1291. The subpoenaed party
can obtain review by refusing to comply with the subpoena and
then contesting a contempt citation, which is immediately appeal-
able.”). However, 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 di-
rectly appealable where the district court stays the consideration of
sanctions pending appeal. Therefore, our precedents requiring a
sanction to be imposed contemporaneously with a finding of con-
tempt in order to be directly appealable are not inconsistent with
Ryan’s directives.
We also recognize that the Second Circuit has read Ryan dif-
ferently, see In re Three Grand Jury Subpoenas,
847 F.2d 1024,
1027–28 (2d Cir. 1988), but we respectfully disagree. “A determi-
nation 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. Jurisdic-
tion § 3917 (2d ed, & June 2022 update).
Nothing in this order today should be construed as limiting
the discretion of the district court to stay execution of its sanctions
order once it is entered, so long as the order imposes “a fine or
penalty . . . within a time certain that may not be avoided by some
other form of compliance.” Combs,
785 F.2d at 976; cf. Escobio,
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6 Opinion of the Court 21-13651
946 F.3d at 1250 (“Actual imposition of a penalty is not necessary
for appellate review as ‘[b]eing placed under the threat of future
sanction’ is ‘an unconditional present sanction’” (alteration in orig-
inal) (quoting Sizzler, 793 F.2d at 1534 n.2)). Such a procedure
would still avoid piecemeal appeals and be consistent with the in-
struction to wait to appeal until there is “nothing for the [district]
court to do but execute the judgment.” Biard,
486 U.S. at 521–22.
III.
Accordingly, as the district court has not yet imposed non-
contingent sanctions, this case is DISMISSED for lack of jurisdic-
tion.
