4.12 Contempt

• Library: Attorney Fees and Sanctions - Virginia and Federal Courts (Virginia CLE) (2016 Ed.)

4.12 CONTEMPT

4.1201 In General. A district court has statutory and inherent authority to punish a party for contempt. ³⁶¹

A court initially must determine whether the movant requests sanctions for civil or criminal contempt. ³⁶² In making this determination, "the critical features are the substance of the proceeding and the character of the relief that the proceeding will afford." ³⁶³ The label given by the movant is not determinative. ³⁶⁴ Rather, "[w]hen the nature of the relief and the purpose for which the contempt sanction is imposed is remedial and intended to coerce the contemnor into compliance with court orders or to compensate the complainant for losses sustained, the contempt is civil; if, on the other hand, the relief seeks to vindicate the authority of the court by punishing the contemnor and deterring future litigants' misconduct, the contempt is criminal. ³⁶⁵

The Fourth Circuit is not bound by the court's characterization of its own proceedings as either civil or criminal and is required to decide that matter for itself. ³⁶⁶

Courts have the inherent power, "incidental to all courts," to "discipline attorneys who appear before it." ³⁶⁷ This inherent power includes the power to suspend or disbar attorneys from practicing before the court. ³⁶⁸

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4.1202 Civil Contempt. "[P]utatively civil contempt sanctions will be held to be criminal sanctions in cases when the fines were 'not conditioned on compliance with a court order,' 'not tailored to compensate the complaining party,' but instead 'initiated to vindicate the authority of the court and to punish the actions of the alleged contemnor.'" ³⁶⁹ "Of course, the distinction between civil and criminal contempt is one of 'character and purpose' in that the punishment for civil contempt is 'remedial' while the punishment for criminal contempt is 'punitive.' It is well-settled that the court cannot impose a purely punitive sanction during a civil contempt proceeding." ³⁷⁰

"To establish civil contempt, a movant must demonstrate: '(1) the existence of a valid decree of which the alleged contemnor had actual or constructive knowledge; (2) . . . that the decree was in the movant's "favor"; (3) . . . that the alleged contemnor by its conduct violated the terms of the decree, and had knowledge (at least constructive knowledge) of such violations; and (4) . . . that [the] movant suffered harm as a result.'" ³⁷¹

However, before attorney fees can be awarded, "a contemnor's refusal to comply with a court order must rise to the level of obstinacy, obduracy, or recalcitrance to satisfy the 'willful disobedience' standard." ³⁷² "This requirement has consistently been applied by the district courts in this circuit when addressing an award of attorneys' fees for disobedience of a court order in a civil contempt proceeding." ³⁷³ "Counsel who file show cause motions stemming from alleged contempt violations are 'charged with the knowledge that

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(a) a fee award is a possible sanction; (b) the fee applicant must prove the reasonableness of the time component of a fee application by clear and convincing evidence; (c) to do so, the applicant must have accurate time records; and (d) block billing (or lumping) often results in a fee reduction. If a party seeking sanctions disregards that knowledge, it must accept the consequences.'" ³⁷⁴

To impose sanctions on a party for civil contempt, a court must "point to an order . . . which sets forth in specific detail an unequivocal command which a party has violated." ³⁷⁵ If a review of the record shows that the conduct did not violate an order of the court, a contempt order will be vacated and remanded. ³⁷⁶

The Fourth Circuit has stated that a court may impose civil contempt sanctions "to coerce obedience to a court order or to compensate the complainant for losses sustained as a result of the contumacy." ³⁷⁷ "Although courts have broad discretion in fashioning remedies for civil contempt, which include ordering the contemnor to reimburse the complainant for losses sustained and for reasonable attorney's fees, remedies and sanctions must be limited to either a remedial or compensatory purpose." ³⁷⁸

Courts have restricted the award of compensatory damages for civil contempt. "Generally, a compensatory sanction may not exceed the actual

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loss to the complainant caused by the actions of respondent." ³⁷⁹ Furthermore, a court has limited discretion to modify requests for compensatory damages. "Once the complainant demonstrates actual losses stemming from the contumacious behavior, the Court is not free to exercise its discretion and withhold an order awarding compensatory damages." ³⁸⁰

Sanctions for civil contempt must be "remedial and compensatory and . . . nonpunitive." ³⁸¹ And they may include costs and fees incurred while pursuing relief and vindicating the right. ³⁸² For example, where defendant failed to comply with the court's prior order to pay plaintiffs $4,162.50 in attorneys' fees resulting from a prior discovery dispute, the court ordered an award of interest in the amount of $144.85, an award of attorneys' fees in the amount of $2,016.50 incurred by plaintiffs as a result of defendant's failure to comply, and an additional $100 each day from the entry of the order until full payment was made to ensure compliance with that and future orders. The court awarded attorney fees at rates reflecting specialization in environmental litigation, noting that "[a]lthough the hourly rates of plaintiffs' counsel reflect their specialization in environmental litigation, the plaintiffs were not required to obtain more affordable counsel in order to address the delinquencies of the defendant." Explaining the award of interest, the court noted that "[n]ine months passed before the defendant paid—an unreasonable delay. Additionally, payment was not made until after the plaintiffs filed a motion for an order to show cause. In light of the defendant's delay, I find that the plaintiffs are entitled to interest in accordance with Virginia's statutory [Va. Code § 6.2-302 ] judgment rate." ³⁸³

A court may rely on pleadings alone to determine an appropriate remedy for civil contempt. An evidentiary hearing is not necessary "if, given the nature [ ][and] circumstances of the case, the parties had a fair opportunity to present relevant facts[ ][and] arguments to the court, to counter the opponent's submissions." ³⁸⁴

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To establish civil contempt, movant must prove the elements by clear and convincing evidence. ³⁸⁵

A party appealing from a civil contempt order may ask the Fourth Circuit to consider "whether contempt was proper" and may challenge "the order alleged to have been violated" unless "earlier appellate review was available." ³⁸⁶ When two independent bases support a district court's contempt order, the order will be upheld if just one of the bases is found appropriate. ³⁸⁷ "When a district court's decision is based on an interpretation of its own order, [Fourth Circuit] review is even more deferential because district courts are in the best position to interpret their own orders." ³⁸⁸

4.1203 Criminal Contempt. "At a minimum, criminal contempt defendants have the right to receive notice of the criminal nature of the charges, and to be prosecuted by an independent prosecutor, and to have their guilt determined 'beyond a reasonable doubt.'" ³⁸⁹ Criminal contempt defendants also have a right to a jury trial and a right to counsel. ³⁹⁰

A. Basis for Criminal Contempt. Under 18 U.S.C. § 401(1) a court of the United States shall have the power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as "[m]isbehavior of any person in its presence or so near thereto as to obstruct the administration of justice."

Four elements must be shown beyond a reasonable doubt to support a summary criminal contempt judgment under section 401(1):

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(1) misbehavior; (2) in or near the presence of the court; (3) with criminal intent; and (4) that resulted in an obstruction of the administration of jus-tice. ³⁹¹

18 U.S.C. § 402: Any person, corporation or association willfully disobeying any lawful writ, process, order, rule decree, or command of any district court of the United States or any court of the District of Columbia, by doing any act or thing therein, thereby forbidden, it the act or thing so done be of such character as to constitute also a criminal offense under any statute of the United States or under the laws of any State in which the act was committed, shall be prosecuted for such contempt as provided in section 3691 of this title and shall be punished by a fine...