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 
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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, 
- 3 - 

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 
- 4 - 

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. 
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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 
- 6 - 

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 
- 7 - 

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 
- 8 - 

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). 
- 9 - 

 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 
- 10 - 

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 
- 11 - 

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. 
- 12 - 

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. 
- 13 - 

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 
- 14 - 

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 subjectmatter 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)). 
- 15 - 

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 
- 16 - 

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. 
- 17 - 

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 
- 18 - 

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 
- 19 - 

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."). 
- 20 - 

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)). 
- 21 - 

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 
- 22 - 

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 . . . 
- 23 - 

                                                                                                                                                                                               

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.