          United States Court of Appeals
                     For the First Circuit
 
 

No. 15-1645


                      ANGIODYNAMICS, INC.,

                      Plaintiff, Appellee,

                               v.

         BIOLITEC AG; BIOMED TECHNOLOGY HOLDINGS, LTD.;
                     and WOLFGANG NEUBERGER,

                     Defendants, Appellants.
 

          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Michael A. Ponsor, U.S. District Judge]
 

                             Before

                    Lynch, Stahl, and Barron,
                         Circuit Judges.
                                 

     Edward Griffith, with whom The Griffith Firm, Michael K.
Callan, and Doherty, Wallace, Pillsbury & Murphy, P.C., were on
brief, for appellants.
     William E. Reynolds, with whom Nixon Peabody LLP was on
brief, for appellee.

                                 

                           May 6, 2016
                                 
           STAHL,      Circuit        Judge.         Defendants,      who        violated    a

preliminary injunction, appealed the resulting civil contempt

order   entered      by    the       district      court.       The       contempt    order

included     a    civil     arrest       warrant       and     an    escalating       fines

provision.       Defendants persisted in their defiance as the unpaid

coercive     fines     continued        to     accumulate.           We    affirmed       the

contempt order and remanded "only to direct the district court

to amend the sanction order so that the fines cease to accrue at

some    total     amount."            AngioDynamics,         Inc.     v.    Biolitec        AG

(Biolitec II), 780 F.3d 420, 428 (1st Cir.), cert. denied, 136

S. Ct. 535 (2015).

           The        district          court         dutifully           followed        our

instructions,        and    Defendants         promptly      appealed       the     revised

contempt   order.          In    this   appeal,       Defendants      argue        that   the

underlying preliminary injunction expired by its own terms and

so the district court can no longer coerce compliance with it.

Because Defendants failed to raise this argument at any time

prior to the present appeal, we DENY the appeal.

                                I.   Facts & Background

           One     does     not       need    to     venture    far       back    into    our

catalogue of decisions to find a recitation of facts for this

case.    This is Defendants' fourth appeal.                         See AngioDynamics,

                                             - 2 -
Inc. v. Biolitec AG (Biolitec I), 711 F.3d 248 (1st Cir. 2013);

Biolitec II, 780 F.3d 420 (1st Cir. 2015); AngioDynamics, Inc.

v. Biolitec AG (Biolitec III), 780 F.3d 429 (1st Cir. 2015).

For the convenience of the reader, however, we take a moment to

trace the travel of the case.

            In 2012, AngioDynamics, Inc. ("ADI" or "Plaintiff")

obtained a $23 million judgment in New York against Biolitec,

Inc. ("BI") based on an indemnification clause in an agreement

between    the   two   entities.      Biolitec    I,   711    F.3d   at   250.

Plaintiff sought to secure payment on that judgment by bringing

suit against BI's President and CEO, Wolfgang Neuberger, and its

corporate   parents,     Biomed    Technology    Holdings    ("Biomed")   and

Biolitec    AG    ("BAG")    (collectively,       "Defendants"),      which,

according to Plaintiff, had looted BI of over $18 million in

assets in order to render it judgment-proof.            Biolitec III, 780

F.3d at 432.     As it turns out, this would be but the first in a

series of attempts to evade payment to ADI and to elude the

power of the courts.

            During     discovery,    Defendants     refused     to    produce

documents and key witnesses, including Neuberger.               Id. at 432-

33.   More importantly, Plaintiff soon learned that BAG, based in

Germany, intended to effectuate a downstream merger with its

                                    - 3 -
Austrian subsidiary.          Id. at 433.           This, Defendants conceded,

would   transfer    BAG's     assets    to    Austria,         precluding       ADI    from

enforcing its judgment.        Biolitec I, 711 F.3d at 252.

            On September 13, 2012, the district court issued a

preliminary injunction barring Defendants from carrying out the

merger.      On    December    14,     2012,       the    district       court       denied

Defendants' motion for reconsideration.                  Id. at 250.           Defendants

appealed    the    preliminary       injunction          to     this     Court,       which

affirmed on April 1, 2013.             Id. at 252.            While that appeal was

pending,    however,   Defendants       decided      to       go    forward     with    the

merger anyway in direct violation of the injunction.                           Id. at 250

n.1.      Defendants   effectuated       the    merger         on   March      15,    2013,

despite    repeated    assurances      to    the    district        court      that    they

would comply with the order.                AngioDynamics, Inc. v. Biolitec

AG, 946 F. Supp. 2d 205, 211-12 (D. Mass. 2013).

            Plaintiff,      understandably,          moved         for   the     district

court to hold Defendants in contempt.                Id. at 211.          In response,

the district court ordered Neuberger to appear in person at an

April 10, 2013 hearing to show cause why he should not be held

in civil or criminal contempt.               Id. at 212.             Neuberger defied

that order as well, notifying the district court that he would

not attend the show-cause hearing.             Id.

                                       - 4 -
               On    April        11,    2013,     the     district      court    issued     a

coercive civil contempt order authorizing escalating, monthly

fines against Defendants and an arrest warrant for Neuberger.

Id.    at    215-16.         The       decision    ordered       Defendants      to    "return

Biolitec AG to the status quo ante," which Defendants conceded

was possible, albeit through a process that would be "lengthy,

burdensome, and onerous."                   Id. at 214-15.          The district court

held    that       "fines       and     incarceration      for    civil    contempt       will

continue      until       Defendants       effectively       restore      the    status    quo

existing prior to the violation of the court's order."                                 Id. at

216.        After a few months, Defendants filed another round of

motions to revoke the contempt order and vacate the underlying

injunction, which the district court denied.                             Biolitec II, 780

F.3d at 424.         Defendants appealed.

               While       the        contempt     order     and,     once      again,     the

injunction          were     pending        appeal,        Defendants        persisted      in

stonewalling         the     district       court.         Not    only    did    Defendants

unequivocally state that they had no intention of complying with

the    contempt          order,    Defendants       also    disregarded         the    court's

warnings that continued defiance of its orders could result in a

default judgment.            Biolitec III, 780 F.3d at 433, 436.                      With few

tools       left    at    its     disposal,       the    court    eventually      entered    a

                                             - 5 -
default    judgment       as        a    sanction    for        violating      its     discovery

orders and awarded ADI approximately $75 million in damages.

Id. at 436.       A default judgment entered on January 14, 2014, and

a final judgment entered on March 18, 2014.                             Id. at 433.         Again,

defendants appealed.

            On March 11, 2015, this Court issued decisions in two

companion       cases.         In       Biolitec    II,    we     affirmed       the    district

court's civil contempt sanctions as well as the district court's

denial     of     Defendants'             motion     to     vacate        the     preliminary

injunction.        780 F.3d at 429.                  We recognized, however, that

Defendants' unyielding contumacy, paired with the accumulating

fine model imposed by the district court, had resulted in a fine

that "far exceed[ed] the amount of the original judgment ADI

[was]     attempting       to       collect."             Id.    at     428.         This     was,

admittedly, Defendants' own doing since the power to purge the

contempt resided with--and continues to reside with--Defendants.

Id.     Regardless, we decided that the district court should amend

its sanction order "so that the fines cease to accrue at some

total     amount,"       and    we        remanded    "for        the     sole    purpose      of

directing the district court to take action with respect to the

total accruing fine amount."                  Id. at 428, 429.             In Biolitec III,

issued that very same day, we also affirmed the district court's

                                             - 6 -
decision to enter a default judgment against Defendants as a

sanction for discovery violations and to award damages in the

amount of approximately $75 million.           780 F.3d at 436-37.

          On April 24, 2015, the district court complied with

our instructions and revised the contempt order by adding a cap

to Defendants' total contempt liability.               The district court

observed that we had "affirmed the [contempt] decision . . . in

all   substantive       respects"     and      "remand[ed]     only     for    a

clarification with regard to the total amount of the ultimate

coercive fine."     The court "cap[ped] the fine Defendants will be

liable for at a total amount of $70 million, or approximately

three times the amount of Plaintiffs' original New York judgment

against Defendant Biolitec, Inc."

          True    to    form,     Defendants    now   appeal    the    district

court's   revised      contempt    order.       Defendants     point   to     the

preliminary injunction, which states, "This Order shall be in

effect until this Court enters a final judgment in this action."

Alleging that the preliminary injunction therefore "expired" on

March 18, 2014, the date on which the district court entered a

final judgment in favor of ADI, Defendants now claim that the

district court was without authority to enter a "new" contempt




                                     - 7 -
decision     on    April     24,   2015     to     coerce        compliance   with    an

"expired" order.

                                   II.    Analysis

             Our decision starts and ends with Defendants' failure

to raise the argument in their prior appeals.                       United States v.

Arreguin, 735 F.3d 1168, 1178 (9th Cir. 2013) ("We need not and

do not consider a new contention that could have been but was

not raised on the prior appeal."); In re Cellular 101, Inc., 539

F.3d 1150, 1155 (9th Cir. 2008) ("By failing to raise the . . .

issue   in   the    prior    appeal,      [the   party]      waived    its    right   to

assert the defense in subsequent proceedings.").                         Simply put,

Defendants' window of opportunity to make this argument closed

with our twin decisions in Biolitec II and Biolitec III.                         As we

stated in Biolitec III, "[w]e will not revisit legal rulings

'explicitly       or     implicitly      decided    by      an     earlier    appellate

decision in the same case.'"               780 F.3d at 434 (emphasis added)

(quoting Remexcel Managerial Consultants, Inc. v. Arlequin, 583

F.3d 45, 53 (1st Cir. 2009)).               "[T]he law of the case doctrine

forecloses reconsideration of issues that were decided--or that

could   have      been    decided--during        prior    proceedings."          United

States v. Williams, 475 F.3d 468, 471 (2d Cir. 2007) (emphasis

added).

                                         - 8 -
                It   is    unclear    whether       the   Defendants'      failure     to

raise this argument in their prior appeals was the result of

inadvertence or tactical reserve and procedural gamesmanship.

Either way, we decline to address their challenge now.                           During

Defendants' prior appeals, they simultaneously challenged the

contempt     order,       the    entry     of   default     judgment,      the     final

judgment award, and--again--the preliminary injunction itself.

All of the ingredients for the present appeal were at hand, and

yet Defendants declined to make their argument at that time.

Perhaps, they opted to await our decisions and see how they

fared, and when they realized that their original recipe had

failed to impress, they used the very same ingredients to cook

up a collateral challenge to those decisions by appealing an

order entered at our behest.

             Whether or not Defendants intentionally delayed making

this   argument,      the       argument    was     available     only     because     of

Defendants' default and continued intransigence in the District

Court.     We    thus     decline    to     allow    them   to    profit    from      that

conduct, given that they are raising this argument only at this

late date.      See In re Cellular, 539 F.3d at 1155 ("Permitting a

case to proceed to a decision on the merits before asserting a

previously      available       defense     undermines      the   integrity      of   the

                                           - 9 -
judicial      system,      wastes        judicial        resources,       and      imposes

substantial costs upon the litigants." (internal quotation marks

and citations omitted)); 18B Wright & Miller, Fed. Prac. & Proc.

Juris. § 4478.6 (2d ed.).                Although the present challenge might

have    posed    a   question      for        our   consideration      had   Defendants

raised it in a timely manner, its current deployment reeks of an

attempt at re-litigation.

              Defendants     seek        to    circumvent       this   straightforward

result in two ways.          First, they contend that they had to wait

until   the     revised    contempt       order        issued   before    raising    this

argument      because     only    then        was   contempt     entered     to    coerce

compliance with an expired order.                      Second, they argue that the

issue is a "jurisdictional" one and, therefore, may be raised at

any time.       Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)

("[S]ubject-matter jurisdiction, because it involves a court's

power    to   hear    a   case,     can        never    be   forfeited     or     waived."

(quoting United States v. Cotton, 535 U.S. 625, 630 (2002))).

We find neither justification persuasive.

              Defendants'        first    parry        misses   the    mark.        During

Defendants'      prior    set     of     appeals,        they   were     subject    to   a

contempt order and continuously escalating fines even though the

underlying preliminary injunction had "expired" as a result of

                                          - 10 -
their default.                                  We affirmed the contempt order and remanded "for

the sole purpose of directing the district court" to set a total

cumulative                        liability                    figure.      Biolitec      II,   780    F.3d   at   429

(emphasis                        added).                        Thus,     the     Defendants'    "expired     order"

argument was as available to them at the time of their prior

appeals as it was after the district court capped the escalating

fines, per our direction.                                               Nothing about the disposition of the

prior appeal could change that simple fact.                                                  Defendants had both

the incentive and the opportunity to raise that issue with this

Court and failed to do so.1

                             Defendants'                        second,         "jurisdictional"       argument     is

equally unavailing.                                            "'Jurisdiction,' it has been observed, 'is

a word of many, too many, meanings.'"                                                 Steel Co. v. Citizens for

a Better Env't, 523 U.S. 83, 90 (1998) (quoting United States v.

Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996)).                                                      The problem is

that              "[c]ourts--including                              [the        Supreme   Court]--have     sometimes

                                                            
              1
       Nor do we imagine the Supreme Court would be particularly
impressed with this argument.     In petitioning the Court to
review our decision in Biolitec II, Defendants raised precisely
this point. Petition for a Writ of Certiorari, No. 15-69, 2015
WL 4319585, at *15 n.21 (July 1, 2015) ("Biolitec has appealed
the Remand Order on the ground that the Preliminary Injunction
expired by its own terms upon entry of the Default Judgment and
was no longer in effect when the Remand Order was entered on
April 24, 2015."). That petition failed. 136 S. Ct. 535.


                                                                         - 11 -
mischaracterized claim-processing rules or elements of a cause

of action as jurisdictional limitations, particularly when that

characterization [is] not central to the case, and thus [does]

not require close analysis."                 Reed Elsevier, Inc. v. Muchnick,

559    U.S.    154,     161    (2010).         Such      "drive-by        jurisdictional

rulings"       can      confuse        the        distinction          between        "true

jurisdictional conditions" and "nonjurisdictional limitations on

causes   of    action."        Id;    see    also     Arbaugh,      546     U.S.   at   511

("Subject      matter       jurisdiction      in     federal-question          cases     is

sometimes     erroneously       conflated         with    a     plaintiff's    need     and

ability to prove the defendant bound by the federal law asserted

as the predicate for relief--a merits-related determination."

(quoting 2 J. Moore et al., Moore's Federal Practice § 12.30[1],

p. 12–36.1 (3d ed. 2005)).

              To     curb     this    practice,          the     Supreme      Court     has

"evince[d] a marked desire to curtail" such flippant use of the

term in recent years.                Reed, 559 U.S. at 161.                 Courts (and

litigants) have been encouraged to use the term jurisdictional

"only when it is apposite."                 Id.     Heeding this admonition, we

must   proceed     with     caution    and    take       care    not   to   indulge     any

party's mere self-serving characterization.




                                         - 12 -
              The    question    of    contempt   jurisdiction    is   a   complex

one.    But while the boundary between a court's jurisdiction to

order contempt and the merits of that court's contempt order may

be difficult to discern at times, Defendants' argument fails to

qualify as jurisdictional under any fair reading of the law.

              The Supreme Court has explained that "'[j]urisdiction'

refers to 'a court's adjudicatory authority.'                   Accordingly, the

term 'jurisdictional' properly applies only to 'prescriptions

delineating the classes of cases (subject-matter jurisdiction)

and    the    persons     (personal        jurisdiction)'   implicating       that

authority."         Id. at 160-61 (emphasis added) (internal citations

omitted) (quoting Kontrick v. Ryan, 540 U.S. 433, 455 (2004));

see    also   Bowles     v.     Russell,    551   U.S.   205,    212-13    (2007);

Scarborough v. Principi, 541 U.S. 401, 414 (2004).

              Accepting       this    premise,    Defendants'    argument    would

appear to be a challenge to the legal propriety of the revised

contempt order, not the district court's jurisdiction to issue

that revision.        This is because the court's jurisdiction to hold

a party in civil contempt would spring from its jurisdiction

over the action itself.              "A district court's authority to issue

a contempt order derives from its inherent power to 'sanction

. . . litigation abuses which threaten to impugn the district

                                        - 13 -
court's integrity or disrupt its efficient management of [case]

proceedings."                                   Biolitec II, 780 F.3d at 426 (alterations in

original) (quoting United States v. Kouri–Perez, 187 F.3d 1, 7

(1st Cir. 1999)).                                        While "a proceeding in criminal contempt is a

separate and independent proceeding at law, with the public on

one side and the respondent on the other," "[p]roceedings in

civil                contempt                      are           between      the   original   parties    and     are

instituted and tried as a part of the main cause."                                                       Parker v.

United States, 153 F.2d 66, 70 (1st Cir. 1946) (emphasis added);

see also Ramos Colon v. U.S. Atty. for Dist. of P.R., 576 F.2d

1,         5        (1st              Cir.              1978)       ("Strictly      a    remedial   action,     civil

contempt arises out of the main suit and . . . is aimed at

restoring the parties to the positions they would have held had

the order been obeyed." (emphasis added)).2

                             In         other                  words,   the   court's    jurisdiction    to   impose

civil contempt would run concurrent with the court's subject-

matter jurisdiction over the action.                                                    Cf. Lewis v. S.S. Baune,

534 F.2d 1115, 1121 (5th Cir. 1976) ("[A]ll courts . . . have

inherent power, within certain limits, to control the conduct of
                                                            
               2
       Criminal contempt, on the other hand, is a "crime in the
ordinary sense."    United Mine Workers of Am. v. Bagwell, 512
U.S. 821, 826 (1994) (quoting Bloom v. State of Illinois, 391
U.S. 194, 201 (1968)).


                                                                         - 14 -
the parties who have subjected themselves to the jurisdiction of

the courts. . . . However, merely because the court has power,

it does not necessarily follow that any and all exercises of

such   power   are    proper.").         Although     a   movant      would   need   to

demonstrate     the     elements      of     civil    contempt,       such     as    the

contemnor's "ability to comply with the order" or the fact that

the contemnor actually "violated [an] order," Hawkins v. Dep't

of Health & Human Servs., 665 F.3d 25, 31 (1st Cir. 2012), these

requirements     would      mark   the     proper    exercise    of    the    contempt

authority, not count as jurisdictional prerequisites.

             This view recognizes the contempt power as an inherent

aspect   of    the    federal      courts'        authority   over      cases.       In

establishing the lower federal courts, the Judiciary Act of 1789

confirmed this power and necessarily vested the courts with it.

See Green v. United States, 356 U.S. 165, 179 (1958), overruled

in part on other grounds by Bloom v. State of Illinois, 391 U.S.

194,   201    (1968);    Anderson     v.    Dunn,    19   U.S.   204,    227     (1821)

("Courts of justice are universally acknowledged to be vested,

by their very creation, with power to impose . . . submission to

their lawful mandates . . . .").                "The moment the courts of the

United   States      were    called      into   existence     and     invested      with

jurisdiction over any subject, they became possessed of [the

                                         - 15 -
contempt] power."                                         Ex parte Robinson, 86 U.S. 505, 510 (1873).

Thus, if the court possesses subject-matter jurisdiction over an

action,                   it         would                seem   that    it     must   possess   civil   contempt

jurisdiction in equal measure to see that action through.

                             The           trouble             arises    in   attempting    to   categorize   the

statutory limitations that Congress has imposed upon that power.

"In 1831, Congress first enacted the statute that restricted the

circumstances under which contempt sanctions could be employed--

restrictions that today are embodied in 18 U.S.C. § 401 . . . ."

Armstrong v. Guccione, 470 F.3d 89, 106 (2d Cir. 2006).                                                       With

§ 401, Congress limited the contempt power to three classes of

cases,                 including                        disobedience       to    the   court's    "lawful   writ,

process, order, rule, decree, or command."                                                   See Robinson, 86

U.S. at 511; 18 U.S.C. § 401(3) ("A court of the United States

shall have power to punish . . . such contempt of its authority

. . . as . . . [d]isobedience or resistance to its lawful writ,

process, order, rule, decree, or command.").3                                                    The question is



                                                            
              3
       "[Section] 401's use of the term 'punish' must be viewed
in the context of its predecessor statutes, which plainly
included within the meaning of 'punish' a court's coercive civil
contempt power, as well as the power to sanction a contemnor
criminally." Armstrong, 470 F.3d at 105.


                                                                        - 16 -
whether, and to what extent, these statutory limitations are

jurisdictional in nature.

             On the one hand, the Supreme Court occasionally has

referred to § 401 in jurisdictional terms.                  See, e.g., Cammer v.

United States, 350 U.S. 399, 405 (1956) ("We see no reason why

the category of 'officers' subject to summary jurisdiction of a

court under § 401(2) should be expanded beyond the group of

persons     who    serve   as    conventional       court     officers      and    are

regularly treated as such in the laws.").                   Indeed, in Ex parte

Robinson,    the    Supreme     Court     vacated    a     contempt      order    that

disbarred the contemnor, and the Court stated that "the question

. . . [was] not whether the court erred, but whether it had any

jurisdiction       to   disbar     [the     contemnor]        for     the    alleged

contempt."        86 U.S. at 511.         Because the statute limited the

implements available to the court to fines or imprisonment, the

Supreme Court held that disbarment exceeded the district court's

jurisdiction.      See id. at 512-13.

             On the other hand, the Supreme Court has cautioned in

more recent years that Congress must clearly express that a

limitation is jurisdictional in order for the federal courts to

interpret it as such.            Reed, 559 U.S. at 163.               And, in rare

exceptions    to    that   rule,   a    statute     will    only    be   "ranked   as

                                       - 17 -
jurisdictional absent an express designation" if the statutory

limitation is "of a type that [the Supreme Court] ha[s] long

held              [does]                 'speak                 in    jurisdictional             terms'    even       absent    a

'jurisdictional'                                    label."              Id.    at     168.        Any     of       the   Supreme

Court's                   "unrefined                           dispositions"          of    jurisdiction            "should    be

accorded 'no precedential effect' on the question whether the

federal                    court                 ha[s]               authority       to     adjudicate          [a]       claim."

Arbaugh, 546 U.S. at 511 (quoting Steel Co., 523 U.S. at 91).

                             Here,                the           statute        does        not    speak        in    explicitly

jurisdictional terms and only Robinson examines the nature of

the limitations in any meaningful measure.                                                         As such, it might be

more appropriate to read § 401 as setting limits upon the proper

exercise of the court's contempt power rather than as setting

limits upon the court's underlying contempt jurisdiction.

                             Yet, we need not resolve this difficult question today

because                      Defendants'                             appeal     would         fail        to        qualify    as

jurisdictional even if we were to assume that § 401 sets out

jurisdictional limits.                                               There is no question that the district

court had (and retains)4 jurisdiction over the present action.



                                                            
              4
       The district court retains jurisdiction over the action so
long as its judgment remains unexecuted. Fafel v. DiPaola, 399
 

                                                                          - 18 -
In addition, there is no question that the alleged contempt

falls within one of the three classes delineated by § 401 (the

alleged                   violation                       of         a        lawful                 order)                 and           that              the           court's

coercive                      sanctions                        fall              within                   the            category                       of          sanctions

permitted by § 401 (fines and imprisonment).                                                                                               The only question

raised by Defendants' appeal is whether the elements necessary

to sustain a finding of civil contempt--namely, the ongoing,

actual violation of a lawful order--were satisfied.                                                                                                           But this is

a question about the merits of the order, not whether it fell

outside § 401's purview altogether.                                                                                See Robinson, 86 U.S. at

511 (distinguishing between the question of "whether the court

erred" in finding that "contempt was committed" and the question

of "whether [the court] had any jurisdiction" to use disbarment

as            a          sanction).                                   Such                a          challenge                          does                not              become

"jurisdictional" just because Defendants call it so.

                             Defendants' cited authorities do not hold otherwise.

In         Shillitani                        v.         United                 States,                   for           example,                     a       witness                   was

confined in order to coerce him into answering questions for a

grand jury.                            384 U.S. 364, 370 (1966).                                                         Once the grand jury was

discharged, however, the "contumacious witness c[ould] no longer
                                                                                                                                                                                                
F.3d 403, 411 (1st Cir. 2005) ("[E]nforcement jurisdiction . . .
extends . . . as far as required to effectuate a judgment.").


                                                                                      - 19 -
be confined since he then ha[d] no further opportunity to purge

himself of contempt."                                                Id. at 371.         Having lost "the ability

. . . to comply with the court's order, . . . the rationale for

civil contempt vanishe[d]."                                              Id. at 371-72.           This challenges the

merits of continued contempt, not the court's jurisdiction.                                                         See

also FTC v. Verity Int'l, Ltd., 443 F.3d 48, 70 (2d Cir. 2006)

("The district court . . . no longer requires [the defendants]

to do the act that the contempt sanctions coerce them do to.

Thus, the sanctions must be vacated."); Consol. Rail Corp. v.

Yashinsky, 170 F.3d 591, 596 (6th Cir. 1999) (holding that,

because the coercive order "no longer serves a purpose," the

contumacious party was "no longer . . . in active contempt of

court for refusing to comply").                                                   Whether a party violated an

order,                whether                   coercion              continues     to    serve    its   purpose,   and

whether the party retains the ability to purge5 are all questions

about the merits of the court's contempt decision.

                             In          fact,                 the    only   case    cited    by     Defendants     that

analyzes the question in clearly jurisdictional terms bolsters

                                                            
              5
       In order to remain coercive rather than punitive, the
contemnor must retain the ability to purge the violation so that
he "carries the keys of his prison in his own pocket." Bagwell,
512 U.S. at 828 (quoting Gompers v. Buck's Stove & Range Co.,
221 U.S. 418, 442 (1911)).


                                                                         - 20 -
our   view.         In   EEOC   v.    Local    40,     Int'l      Ass'n    of    Bridge,

Structural & Ornamental Iron Workers, the Second Circuit held

that "[a] court does not have inherent power to enforce an order

that has expired."            76 F.3d 76, 80 (2d Cir. 1996).                     In that

case, however, the "order" was a consent decree.                             Id.       The

decree, entered in 1980, expired in three years unless the Equal

Employment      Opportunity          Commission      ("EEOC")       moved        for    an

extension within that time.             Id. at 81.      Thus, after three years

without     EEOC     intervention,       the   purpose       of    the     decree      was

satisfied     and    the    parties     were     "released        from    the    court's

continuing jurisdiction."              Id.     In other words, "the court's

enforcement authority expired when the decree expired."                            Id. at

80 (emphasis added).            Because the court no longer possessed

jurisdiction over the action at all, it is no surprise that the

court lacked any "inherent power" to hold one of the parties in

contempt based on a "violation" a decade later.                    Id. at 78.

              The case at bar bears no resemblance.                      In this case,

the district court continues to maintain jurisdiction over the

action, Defendants violated the terms of the underlying order

prior to its "expiration," and the court took action to rectify

the   situation      within     the    context    of    an     ongoing     case.        We

affirmed,      and       Defendants     now    raise     a      belated         challenge

                                        - 21 -
implicitly                          foreclosed                 by     our   prior   decisions.   In   such

circumstances, Defendants' appeal must fail.6

                                                               III.    Conclusion

                             "The procedure to enforce a court's order commanding

or forbidding an act should not be so inconclusive as to foster

experimentation with disobedience."                                            Maggio v. Zeitz, 333 U.S.

56, 69 (1948).                                       Defendants in this case, who have repeatedly

thumbed their nose at the district court, "are not unwitting

victims of the law. . . . They knew full well the risk of

crossing the forbidden line."                                           McComb v. Jacksonville Paper Co.,

336 U.S. 187, 193 (1949).                                           Defendants cannot now hang their hat

on a theory borne of their own defiance and delay.                                               For the

foregoing reasons,7 we DENY the appeal.8

                                                            
              6
       Defendants raise a last-ditch argument in the event we
find, as we do, that the issue is not jurisdictional and that
they are deemed to have had the opportunity to raise the issue
earlier.     Defendants argue that waiver is a matter of
discretion, and they urge us to make an exception in this case.
In re Net-Velázquez, 625 F.3d 34, 41 (1st Cir. 2010). Needless
to say, this is not a case where "the equities heavily
preponderate in favor of such a step," id. (quoting Nat'l Ass'n
of Soc. Workers v. Harwood, 69 F.3d 622, 627 (1st Cir. 1995)),
and so we would decline to exercise our discretion to hear the
appeal regardless.
              7
       Although we need not reach the merits of Defendants'
appeal, we do regard their theory--which they base on
Shillitani, Verity, and Yashinky--with some skepticism.  The
injunction set out a temporal limit ("in effect until . . .
 

                                                                      - 22 -
                                                                                                                                                                                                
final judgment"), but it also assumed compliance with its
substantive terms ("Defendants shall not carry out the proposed
'downstream merger'"). The order as a whole served one purpose:
keeping assets available to satisfy a judgment.     United States
v. Christie Indus., Inc., 465 F.2d 1002, 1007 (3d Cir. 1972)
("The language of an injunction must be read in the light of the
circumstances surrounding its entry . . . [such as] the mischief
that the injunction seeks to prevent."); see also Ohr ex rel.
Nat'l Labor Relations Bd. v. Latino Exp., Inc., 776 F.3d 469,
480 (7th Cir. 2015) ("[A]ny other interpretation . . . would
eviscerate the effect of [preliminary injunctions], as a party
could simply continue its violation . . . long enough that the
district court order expire[s] by its own terms.").
     Nor need we delve deeply into other equitable grounds upon
which the appeal might be barred. Sapoundjiev v. Ashcroft, 376
F.3d 727, 729 (7th Cir. 2004) ("Someone who cannot be bound by a
loss has warped the outcome in a way prejudicial to the other
side; the best solution is to dismiss the proceeding.").
              8
       Because the order stands, we do not decide here what
Defendants might owe even if the contempt order expires by law
or by purge.    The liability cap was not a fixed, determinate
fine set out in advance, but rather a ceiling on accumulated,
past due fines.    When a court imposes ongoing fines at regular
intervals,   these   fines--like  civil  imprisonment--"exert   a
constant coercive pressure." Bagwell, 512 U.S. at 829. "[O]nce
the jural command is obeyed, the future, indefinite, [monthly]
fines are purged."        Id. (emphasis added).       Presumably,
Defendants' uninterrupted disregard of the contempt order cannot
render collectable past due amounts punitive.    See id. at 840
n.* (Scalia, J., concurring) ("The per diem fines . . . were in
most relevant respects like conditional prison terms[,] . . .
the penalty continued until the contemnor complied, and
compliance stopped any further punishment but of course did not
eliminate or restore any punishment already endured." (emphasis
added)). Of course, the district court may still "reassess the
fine amount if Defendants come into compliance."    See Biolitec
II, 780 F.3d at 428.


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