FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JULY 8, 2008

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-15255

Non-Argument Calendar

________________________

D. C. Docket No. 06-00183-CV-ORL-28-KRS

SECURITIES AND EXCHANGE COMMISSION, 

Plaintiff-Appellee, 

versus 

PATRICK KIRKLAND, 

Defendant-Appellant, 

JUDITH M. MERCIER, 

Receiver-Appellee. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(July 8, 2008)

Before ANDERSON, HULL and PRYOR, Circuit Judges.
2

PER CURIAM:

Patrick Kirkland appeals a finding of contempt and remedial sanction that

followed his alleged violation of an asset freeze, which was entered after the

Securities and Exchange Commission filed a complaint against Kirkland. Because

we lack jurisdiction over the order of civil contempt entered by the district court,

we dismiss this appeal.

In 2006, the Commission filed a complaint against Kirkland and three

companies controlled by him. The complaint alleged that Kirkland had

fraudulently enticed investors to buy unregistered securities in real-estate

developments. The complaint requested a restraining order, a freeze of assets, the

appointment of a receiver, disgorgement, and civil penalties. The district court

entered a freeze of assets and appointed a receiver.

In 2007, the Commission and the Receiver filed a joint motion for an order

to show cause why Kirkland should not be held in contempt for violating the asset

freeze. The motion alleged that Kirkland had cashed two checks issued by his

bank in knowing violation of the asset freeze. The total of the two checks was

$3,957.73.

The district court later entered an order that found Kirkland in civil

contempt. It found that Kirkland had “willfully violated the asset freeze by
3

contacting Ohio Savings Bank, instructing the Bank to stop payment on two checks

and mail replacement checks directly to him, and cashing the checks.” The court

imposed a “remedial sanction” that required Kirkland to repay the total of the two

checks in two equal installments by December 26, 2007. Kirkland then filed this

appeal.

Appellate jurisdiction ordinarily is limited to “final decisions.” 28 U.S.C.

§ 1291. A finding of civil contempt against a party to an ongoing proceeding is

interlocutory and not appealable until a final decree is issued, subject to several

exceptions. Howard Johnson Co. v. Khimani, 892 F.2d 1512, 1515 (11th Cir.

1990). An order that imposes a fine or penalty for contempt that must be obeyed

within a certain period and may not be avoided by some other form of compliance

is immediately appealable, but an order of contempt that imposes a fine or penalty

that the party in contempt can avoid by complying with the earlier order is

interlocutory and not appealable. Combs v. Ryan’s Coal Co., 785 F.2d 970, 976

(11th Cir. 1986). Where the district court is engaged in an “on-going

intervention,” as evidenced by a contempt order that is “subject to modification or

appeal,” the effect of intervention by an appellate court would be “to tie the hands

of the district court, diminish compliance with its orders, and augment [the

appellate court’s] own workload.” Id. at 977. “The imposition of sanctions . . . is
4

a prerequisite for appellate review of a contempt order.” Don’s Porta Signs, Inc. v.

City of Clearwater, 829 F.2d 1051, 1053 n.7 (11th Cir. 1987).

The order of civil contempt entered by the district court is interlocutory and

not appealable. The remedial sanction is intended to allow Kirkland to purge

himself of his contemptuous conduct and comply with the asset freeze. “Appellate

review . . . would be disruptive of what [is] obviously a continuing effort on the

part of the district court to prod [Kirkland] into compliance.” Combs, 785 F. 2d at

976. It is not a sanction that is immediately appealable.

One of our sister circuits has reached the same conclusion in this

circumstance. In Securities & Exchange Commission v. Hickey, 322 F.3d 1123,

1127–28 (9th Cir. 2003), the Ninth Circuit concluded that an order to repay money

taken in violation of an asset freeze was not a sanction but instead allowed a

defendant the “opportunity to purge himself” of his contempt by paying the money

owed within a certain period. Id. The Hickey court dismissed the appeal of the

remedial order because it was interlocutory and not immediately appealable. Id. 

We dismiss Kirkland’s appeal for lack of jurisdiction. 

DISMISSED.