Ruminations on Judge Boasberg’s Choices

 

Ruminations on Judge Boasberg’s Choices:

Holding Litigants in Contempt in the Context of Emergency Orders

 

          The Supreme Court has stayed Judge Boasberg’s orders. It appears a contempt citation running against the government or its counsel (the Department of Justice) or both is off the table—at least for now. But the procedural issues that arose in Boasberg’s case and several other recent cases against the Trump-47 administration are likely to arise again. Here, I want to clarify how federal courts and the wider public should understand contempt citations arising in the context of emergency litigation.

          In what might be called “normal” litigation, two parties are before the trial court. The plaintiff in civil litigation or the prosecutor in criminal litigation has dragooned a defendant before the court. The two parties are adversarial. The judge (with or without a jury) hears from a full set of live witnesses (from each party) subject to cross-examination under the rules of evidence. Such evidentiary rules exclude hearsay at the request of a party. In short, both parties are before the court—each has had notice and an opportunity to be heard. When the court issues its final order, both parties are bound. A party who violates such an order will face stiff sanctions, including contempt. A party seeking to escape the burdens of such an order has only a few paths forward: seek reconsideration from the trial court, appeal to a higher court, or seek a legislative change before the time for reconsideration and appeal has run out. (A daring litigant might also try a collateral attack based on the absence of jurisdiction.) 

          Prior to full trial on the merits, a plaintiff might also seek a preliminary or interlocutory injunction. The posture of the case is in some ways the same and in some ways different from “normal” litigation described above. There is a plaintiff who has dragooned a defendant before the court. That is the same. The two parties are adversarial. That is the same too. Where such preliminary relief is sought, the judge will hear the proceeding, but there will not be a jury. There will be no trial with both sides putting on a full set of live witnesses and such witnesses being subject to cross-examination. Indeed, there may be no witnesses at all. Rather, each side is likely to support its position only with sworn affidavits—that is hearsay. To put it another way, the very hearsay “evidence” that is regularly excluded during “normal” litigation is the evidence (and sometimes the only evidence) the courts regularly rely upon in determining whether to grant or deny a preliminary injunction. Indeed, that is one reason that there is no jury in such proceedings. The evidence, such as it is, is subject to abuse, exaggeration, and bias precisely because the affidavit’s declarant knows he will not be made subject to cross-examination. Likewise, it is hoped that a judge, being a repeat player unlike random and occasional jurors, will be more likely to see through such trickery in drafting affidavits.

          Given that the evidence at this stage is arguably unreliable, you might ask why grant preliminary relief at all? The traditional answer is that a defendant’s alleged wrongful conduct might be so transformative of the facts on the ground, that if the court waits to make its determination only after full trial on the merits, with a full set of witnesses on both sides and subject to cross-examination, then by that time, no adequate relief may be possible. Indeed, no relief may be possible. And plaintiffs should not be left absent a remedy when their legal rights are being invaded, particularly when the harm suffered is such that they cannot be compensated for that harm after full trial on the merits. At least, that’s the rationale.

          In both the “normal” full trial on the merits, with live witnesses subject to cross-examination, and a preliminary injunction proceeding—both parties are before the trial court, and both parties have had notice and an opportunity to be heard. Here too, at the preliminary injunction stage, parties are expected to comply with the court’s decision to grant or deny injunctive relief. A noncompliant party will be subject to sanctions, including contempt.

          Finally, even prior to seeking a preliminary injunction, a plaintiff might seek emergency relief—an injunction for just 1 or 2 days, or even a for a few hours. This injunction, if granted, would last until a coordinate hearing is heard for a preliminary injunction. And if not granted, the plaintiff might still seek a preliminary injunction. Such an injunction is sometimes called a temporary restraining order (“TRO”) or interim injunction. The legal standard for granting a TRO is basically the same standard used in the context of a preliminary injunction hearing. But not all TROs are alike. Some TROs are heard ex parte (where the other party is not present), and some are heard ex parte and in chambers (where the public is excluded). See, e.g., Anton Piller KG v Manufacturing Processes Ltd (Denning MR and Omrod LJ) (hearing the proceeding, on appeal, ex parte and in-chambers).

          Why might the defendant be absent? There are a variety of possibilities. The defendant could not be found. The defendant could be found, but he only received service of process a very short time prior to the hearing—so, he physically could not reach the court in time for the hearing. Or he could reach the court, but he has had no time to find a lawyer or to consult with his lawyer about a defense against the TRO. (This was the position General Cadawalader was put in, in Ex parte Merryman, when on less than one-day’s notice Chief Justice Taney expected Cadwalader to find an attorney and put forward a defense for the army’s conduct during the U.S. Civil War.) Or, where the DOJ is the attorney—the DOJ might not have had time to consult an agency client (if an agency is the client) or the President (if the President is a defendant). In either event, the defendant may be absent from the hearing or even if present, he has not had a meaningful opportunity to put a defense forward. Imagine finding yourself surprised one day confronted with the news that an emergency order has been issued against you and you had no notice and no opportunity to be heard. Is that really something a defendant must obey?

The law here is somewhat murky.

On the one hand, if the court has jurisdiction (to hear this type of dispute and jurisdiction over the defendant), then some courts and commentators say the answer is “yes.” Parties must obey courts, and judges expect to be obeyed. If the order is ex parte, that is just another type of court order, and a defendant’s disobedience risks sanctions, including contempt.

But not all courts and commentators agree. Some take the view that obedience to court orders is generally predicated on fair play and due process: that is, notice and an opportunity to be heard. As such, a defendant can risk disobedience to an ex parte court order. If the defendant persuades the court (in subsequent proceedings, reconsideration, or on appeal) that the ex parte TRO should not have been issued in the first place, then the defendant should not have had to comply with the order and should not face sanctions for disobedience to it while it was in effect. 

Again the law here is unclear. Compare, e.g., Hallmark Cards Inc. v Image Arts Ltd (Buckley LJ) (holding that where an ex parte order is set aside, the defendant should not be held in contempt for prior noncompliance while the order was in effect), with Wardle Fabrics Ltd v Myristis Ltd (Goulding J) (disobedience to an ex parte order amounts to contempt even if the order is later set aside). One prominent commentator, Professor Hilary Biehler, has taken the position that where an ex parte order is subsequently set aside courts should be “slow to impose penalties … in view of the potential for abuse”. Interestingly Biehler does not clarify if the abuse will arise in connection with underhanded or reckless conduct by the applicant seeking the TRO or from judges’ officiously seeking to punish defendants with meritorious positions, but not in technical compliance with ex parte courts orders which were subsequently set aside. See Biehler, Equity and the Law of Trusts in Ireland 777 (7th ed. 2020) (commenting on English and Irish case law).

If the DOJ refused to abide by a federal trial court judge’s order, and that order was granted ex parte, but subsequently it was set aside, then what should the judge do? My view is that holding the prevailing party in contempt should not be predicated on mere disobedience standing alone. Contempt’s normative justification is tied to fair play and due process, but where the process is ex parte, contempt is too harsh. What is driving the public mind (or part thereof) to press for contempt in the recent immigration cases is that a large part of the public believes the Trump-47 policies are lawless or heartless or both. But if the policies are lawless, that’s a merits determination. If the order was set aside on appeal, then the merits standing alone should not be sufficient cause to elicit a contempt order. As for heartless, I am sure that the majority of federal judges thinks that too. But that is a policy and values judgement—we hold elections to make those decisions—we do not issue contempt citations for being on the wrong side of a naked moral judgment untethered to established law.

          Where an ex parte TRO is set aside, I think a federal trial court judge has a narrow window of opportunity to hold a disobedient defendant in contempt. The judge must establish that the defendant’s conduct during and in the course of the litigation was illegal or inequitable. Here I am speaking not to the litigant’s underlying or out-of-court conduct, but his conduct in relation to his representation before the trial court. The conduct would have to be something akin to perjury, fraud, or unclean hands (albeit, that doctrine usually applies to plaintiffs’ seeking equitable relief, as opposed to defendants’ opposing an application for equitable relief).

          To put it another way, when a trial court’s ex parte TRO is on its way up through the court system on appeal, a judge should refrain from discussing contempt, in full public view, for noncompliance during that time. After the appellate process is over, then that’s the time to consider a contempt citation, and it should be done in full public view. Otherwise, the judge will look vicious, officious, and biased. And that cannot be right.

 

Seth Barrett Tillman, ‘Ruminations on Judge Boasberg’s Choices,’ New Reform Club (Apr. 11, 2025, 10:58 AM), <https://reformclub.blogspot.com/2025/04/ruminations-on-judge-boasbergs-choices.html>;