Friday, March 04, 2016

Shell Offshore v. Greenpeace (9th Cir. - March 4, 2016)

There's one part of today's opinion that confuses me.

The district court enters an injunction that orders Party A to stop doing X, and says that for every hour it continues to do X, it'll be fined $2,500.  Party A eventually stops doing X -- the coercive sanction works -- but allegedly did X for seven hours after the deadline, thereby incurring a fine of $17,500.  But before the district court resolves the disputed issue about the seven hours (and determines the relevant fine), Party A appeals the injunction, and the action is stayed.

So there's no actual determination of the fine yet.  And, because the injunction is time-limited, and there's no continuing violation of it right now, the injunction has now expired.

But the parties continue to dispute whether the injunction was valid and whether Party A actually violated it (and hence should be fined $17,500).  That's the dispute on appeal.

The Ninth Circuit, however, dismisses the appeal of the injunction as moot.  Holding that since Party A has stopped violating the injunction (which has now terminated anyway), there's no live dispute.

But what about the $17,500?

The Ninth Circuit says that the fine doesn't matter now since Party A has stopped its contemptuous conduct; i.e., the threat has worked.  True enough.  But surely it still owes the fine, right?  At least if the injunction was valid, which is what the disputed appeal is about.

The Ninth Circuit appears to say otherwise; that, at this point, Party A doesn't have to pay the fine, since the point of the fine (to coerce compliance) has now passed.  Perhaps that's true as a theoretical matter, but practically, the argument doesn't really work for me.  Contempt fines don't work -- or at least don't work well -- if you can make them moot by filing an appeal and eventually comply with the injunction, thereby avoiding the actual imposition of a fine that's ostensibly now "moot".

I may well be worried, and comply, if you threaten to spank me for $2,500 for every hour I delay.  But if you don't actually impose that sanction, or -- worse -- if the Court of Appeals says that you can't impose that sanction as long as I've eventually complied, I can tell you right now that the extent of my worry, and the rapidity of my compliance, will almost certainly diminish.

I understand that, under the Ninth Circuit's ruling, in some circumstances, I might still worry about an eventual fine; e.g,, if the injunction is unlimited in time, (maybe) if the district court rapidly gets off its butt and determines an amount, etc.  But I imagine there are lots of situations that are exactly like the present case.  And if belated compliance moots out otherwise valid contempt fines, it's eminently conceivable to me that district courts will have a much harder time enforcing their orders.

Which would be a bad thing.  For me, anyway.  (Not so much for Greenpeace.)