United States v. Fidanian

• Decision Date: 04 December 1972
• Docket Number: No. 71-2952.,71-2952.
• Citation: 465 F.2d 755
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alek FIDANIAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

465 F.2d 755 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Alek FIDANIAN, Defendant-Appellant.

No. 71-2952.

United States Court of Appeals, Fifth Circuit.

July 26, 1972.

Rehearing and Rehearing Denied September 12, 1972.

Certiorari Denied December 4, 1972.

Timothy J. Armstrong, Miami, Fla. (Court-appointed), for defendant-appellant.

Robert W. Rust, U. S. Atty., Miami, Fla., Bessie Margolin, Carin Ann Clauss, Jay S. Berke, Richard F. Schubert, Sol. of Labor, Sylvia S. Ellison, Atty., U. S. Dept. of Labor, Washington, D. C., Beverley R. Worrell, Regional Sol., for plaintiff-appellee.

Before PHILLIPS,^* THORNBERRY and RONEY, Circuit Judges.

Rehearing and Rehearing En Banc Denied September 12, 1972.

Certiorari Denied December 4, 1972. See 93 S.Ct. 540.

RONEY, Circuit Judge:

This case raises the question of whether the power of the district court to imprison a person found to be in criminal contempt of a court order directing compliance with the Fair Labor Standards Act is in any way limited by the provisions of that Act. The Fair Labor Standards Act provides criminal penalties for violation of the Act, but prevents imprisonment on the first offense. The United States Code provides that a district court may punish the disobedience of its orders by imprisonment. The question is whether that provision of the Fair Labor Standards Act also prohibits imprisonment on the first conviction for contempt of a court order requiring compliance with the Act, there being no prior criminal conviction under the Act. We hold that the power of the district court is not so limited and affirm the sentence of six months imprisonment for the willful violation of the court's order.

The district court found that Alek Fidanian had willfully violated a consent decree entered against him in a Fair Labor Standards Act proceeding. The court adjudged Fidanian to be in criminal contempt and sentenced him to six months in prison. The consent decree emanated from an action instituted by the Secretary of Labor under Section 17 of the Fair Labor Standards Act against VIP Answering Service, Inc., and Alek Fidanian, its sole stockholder. In April, 1970, by consent decree the district court enjoined defendants from violating the minimum wage, overtime, and record-keeping provisions of the Act and ordered payment to various employees of back wages totalling $3,022.58.

A year later, defendant still had not complied with the district court's order. The United States petitioned for both civil and criminal contempt judgments against Fidanian and VIP Answering Service. The court found the individual and corporate defendants both guilty of civil and criminal contempt. The only appeal taken is from the criminal contempt judgment entered against Fidanian personally.

Although we think the most important question on this appeal is that concerning the prison term, Fidanian raises additional questions of jurisdiction and failure of proof.

I. Imprisonment

The prison sentence was imposed on Fidanian under authority of 18 U.S.C. § 401 (1970):

"A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as —

* * * * * *

(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command."

Fidanian's position is that Section 401 cannot, in a Fair Labor Standards Act case, be read in vacuo. He contends that it must be read in pari materia with Section 16(a) of the Fair Labor Standards Act, 29 U.S.C.A. § 216(a) (1970), which provides:

"Any person who willfully violates any of the provisions of section 215 of this title shall upon conviction thereof be subject to a fine of not more than $10,000, or to imprisonment for not more than six months, or both. No person shall be imprisoned under this subsection except for an offense committed after the conviction of such person for a prior offense under this subsection."

Had Fidanian been prosecuted under Section 16(a), the district court would have been prohibited from imposing a prison sentence because he had never been convicted of a prior violation of the Act.

Appellant argues that Congress would not have so carefully limited the court's power to punish FLSA violations in prosecutions brought under that Act, and yet left it open for the court to impose a prison sentence for precisely the same conduct under the contempt power. The actions of appellant, he argues, amount to nothing more than a violation of the Act, for which he could not at this time be imprisoned under Section 16(a).

The government relies on Brown v. United States, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed.2d 609 (1959). Defendant in that case was summoned to testify before a grand jury investigating violations of the Motor Carrier Act. When he refused to testify after a grant of immunity, he was held in contempt and sentenced to 15 months in prison. Brown argued in the Supreme Court that the sentence he was given was greater than that provided for substantive violations of the Motor Carrier Act itself. The Court rejected this argument, pointing out that a more apt comparison would be to the five year prison term allowable for the offense of obstructing justice.

While the case before us is, of course, factually different from Brown, we think that the rationale of that decision is applicable. Brown makes clear the distinction which must be drawn between the court's power to punish violations of criminal statutes and its power to vindicate its own authority through the use of the contempt judgment. It is settled law that the power to punish for contempt is an inherent power of the federal courts and that it includes the power to punish violations of their own orders. Green v. United States, 356 U. S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958); N.L.R.B. v. Deena Artware, Inc., 261 F.2d 503 (6th Cir. 1958), rev'd on other grounds, 361 U.S. 398, 80 S.Ct. 441, 4 L.Ed.2d 400 (1960); In re Manufacturers Trading Corp., 194 F.2d 948 (6th Cir. 1952). The inherent power to punish contempt has been upheld even though the order upon which the criminal contempt rests is set aside on appeal. United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947). The contempt power can be, however, limited by Congress and Section 401 has been found to so limit it. United States v. Temple, 349 F.2d 116 (4th Cir. 1965), cert. denied, 386 U.S. 961, 87 S.Ct. 1024, 18 L. Ed.2d 110 (1967); Farese v. United States, 209 F.2d 312 (1st Cir. 1954). But a limitation on a federal court's inherent power to punish violations of its own orders must be explicit. Such an explicit limitation cannot be found in Section 216(a), nor can one be implied from it. Merely because an act may constitute both an indictable offense and a contempt does not afford a basis upon which to find an implicit limitation on the contempt power. See Jurney v. MacCracken, 294 U.S. 125, 55 S.Ct. 375, 79 L.Ed. 802 (1935); United States ex rel. Brown v. Lederer, 140 F.2d 136 (7th Cir.), cert. denied, 322 U.S. 734, 64 S.Ct. 1047, 88 L.Ed. 1568 (1944). The contempt sentence given here was within the limits set by the legislature. There is no question that defendant's conduct amounted to knowing disobedience of the court's order, and it is this affront to the integrity of the court, not the substantive criminal violation, that is being punished.¹

Moreover, unlike a statutory criminal violation where liability cannot be avoided by subsequent remedial or restitutory action, a party can easily avoid a contempt violation by simply obeying the court's order. When the order is entered he is fully advised of what must be done to avoid punishment. He may do this even though the facts and circumstances giving rise to the order might also have supported criminal liability. This procedure would seem to afford the kind of protection that Congress may have intended against imprisonment for initial violations that might result from the failure to comply with a complicated business regulation. A person could be unaware of the severe consequences that could accrue for non-compliance with the Act, until he had met the full impact of the Act, face to face. On the other hand, no one should be unaware of the ancient inherent power of the court to enforce its orders by contempt proceedings, including imprisonment.

Defendant has argued that to affirm his conviction would be giving our approval to the government's attempt to circumvent the restrictions which Congress placed in Section 16(a) of the Act. It is more correct to say that a reversal would constitute approval of the defendant's attempt to circumvent the usual consequences of a willful disobedience of the orders of the court. As the Supreme Court has observed:

". . . if, upon the examination of the record, it should appear that the defendants were in fact and in law guilty of criminal contempt, there could be no more important duty than to render such a decree as would serve to vindicate the jurisdiction and authority of courts to enforce orders and to punish acts of disobedience. For while it is sparingly to be used, yet the power of courts to punish for contempts is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the performance of the duties imposed on them by law. Without it they are mere boards of arbitration, whose judgments and decrees, would be only advisory." Gompers v. Buck\'s Stove & Range Co., 221 U.S. 418, 450, 31 S. Ct. 492, 501, 55 L.Ed. 797 (1910). See also Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957).

II. Jurisdiction of the District Court

Fidanian contends that the district court had no jurisdiction to enter the criminal contempt judgment because the government did not prove that at the time the consent decree was entered Fidanian actually had employees who were covered by the Fair Labor Standards Act. He reasons that the district...