Justice Department fights Minnesota judge's contempt order against government attorney

ST. PAUL, Minn. (CN) — Federal attorneys urged the Eighth Circuit Wednesday to overturn a lower court's contempt order against a government lawyer issued after a detainee was released without adherence to court instructions.

Though the specific fines were avoided, the Justice Department seeks binding guidance shielding government attorneys from being used as financial leverage against federal agencies.

"The District Court held an attorney in contempt in an effort to coerce conduct from an attorney's client," Justice Department attorney Daniel Tenny said. "That mechanism of driving a wedge between the lawyer and the client by inserting the lawyer's personal interests in an effort to secure compliance by the client is entirely improper."

The case stems from a February habeas petition, in which Rigoberto Soto Jimenez argued his detainment without bond was unlawful. U.S. District Judge Laura Provinzino granted his petition one week later, ordering Immigration and Customs Enforcement to release him in Minnesota and return his property.

The Eighth Circuit has since rejected the legal basis for Provinzino's ruling and other Minnesota federal judges' decisions.

After ICE violated that order by releasing Jimenez in Texas without his property, the Joe Biden appointee held Special Assistant U.S. Attorney Matthew Isihara — the counsel of record — in civil contempt for failing to communicate, ordering him to pay a fine of $500 per day until ICE complied.

ICE quickly located and returned Jimenez's property before any fines accrued, which purged the contempt — though federal attorneys argue that's not enough and seek a ruling condemning the attempt to hold an attorney liable for a client's actions.

The Justice Department also noted all communication issues with ICE were resolved at the time of the contempt hearing.

"There has to be a clear order of the court saying there's something that Mr. Isihara had to do at the time the contempt order was issued," Tenny said. "If you say, 'you just did it this morning, you should have done it last week,' that's not grounds for coercive contempt."

As the contempt order was lifted before any monetary penalty was issued, the appellate panel struggled with establishing standing.

"I mean, what would we do even to redress any injury that had been inflicted here, even if it did occur," U.S. Circuit Judge Bobby Shepherd, a George W. Bush appointee, said — though Tenny argued that logic would discourage attorneys from settling disputes.

"Essentially, Mr. Isihara could have discouraged ICE from complying for another day so they gave him a $500 fine, and then he would be able to appeal to this court," he said.

As Jimenez's attorneys took no part in the appeal, the court appointed Jeffrey Justman, of Faegre Drinker Biddle & Reath LLP, as amicus counsel to defend the contempt order.

Justman argued "reputational harm" alone or embarrassment is not grounds for standing, and the idea that Isihara took every measure to ensure compliance is simply untrue — noting it was the failure to perform his duties, not ICE's failure to follow orders, that sparked the contempt.

"I don't think we want an order that an attorney has no ability to influence their client in following a court order," he said. "Mr. Isihara personally dropped the ball and never forwarded the order."

Shepherd seemed skeptical of Justman's argument, as the order to show cause failed to specifically identify Isihara.

"I'm not sure your argument that all the lawyers that represent the government are included within those terms really hold water here," Shepherd said. "An order that, to me, gives notice that the court is considering holding the government in contempt, not an attorney that represents the government."

Isihara was one of several lawyers temporarily assigned as a SAUSA in Minnesota after mass immigration enforcement resulted in an unprecedented surge of habeas petitions.

Isihara said the overwhelming volume left him handling roughly 130 cases in a single month and regrettably unable to give the related case adequate attention amid a "smothering" of litigation.

Justman referenced Isihara's admission, claiming federal attorneys are now making arguments on appeal never raised before the lower court.

"After the contempt order was issued, no one sought clarification, no one sought reconsideration, no one said 'I had no notice," he said — an argument dismissed by Tenny.

"The idea that Isihara, in the middle of this contempt hearing, was supposed to say, 'I didn't know this was about me personally, if you're going to hold someone in contempt, it should be my client and not me…' illustrates all of the problems with this case."

Throughout Operation Metro Surge, multiple Minnesota federal judges threatened civil and sometimes criminal contempt against federal attorneys and government officials for "flouting" court orders.

U.S. Circuit Judges James Loken and Steven Colloton — appointed by George H.W. Bush and George W. Bush, respectively — rounded out the Eighth Circuit panel.