Harris v. City of Phila , 47 F.3d 1311 ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
2-15-1995
Harris v City of Phila
Precedential or Non-Precedential:
Docket 93-1997
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Nos. 93-1997, 93-2116 and 93-2117
MARTIN HARRIS; JESSE KITHCART; WILLIAM DAVIS;
RANDALL CUMMINGS; EVELYN LINGHAM; ESTRUS FOWLER
TYRONE HILL and NATHANIEL CARTER
v.
THE CITY OF PHILADELPHIA; JOAN REEVES, in her
official capacity as Commissioner of The Department
of Human Services of the City of Philadelphia;
ALBERT F. CAMPBELL; ROSITA SAEZ-ACHILLA;
GENECE E. BRINKLEY, ESQ.; REV. PAUL M. WASHINGTON;
M. MARK MENDEL; HON. STANLEY KUBACKI; MAMIE FAINES,
each in his or her official capacity as a member
of the Board of Trustees of the Philadelphia Prison System;
J. PATRICK GALLAGHER, in his official capacity as
Superintendent of the Philadelphia Prison System;
HARRY E. MOORE, in his official capacity as
Warden of Holmesburg Prison;
WILHELMINA SPEACH, in her official capacity
as Warden of the Detention Center;
PRESS GROOMS, in his official capacity as
Warden of the House of Corrections;
RAYMOND E. SHIPMAN, in his official capacity
as Managing Director of the City of Philadelphia; and
MAYOR EDWARD G. RENDELL, in his official capacity as
Mayor of the City of Philadelphia
Theodore Levine, Albert F. Campbell, Rosita Saez-Achilla,
Genece E. Brinkley, Esq., Rev. Paul M. Washington,
M. Mark Mendel, Esq., Hon. Stanley Kubacki,
Mamie Faines, J. Patrick Gallagher, Harry E. Moore,
Wilhelmina Speach, Press Grooms, Raymond E. Shipman,
Hon. Edward G. Rendell and the City of Philadelphia
Appellants
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 82-cv-01847)
Argued September 14, 1994
Before: SLOVITER, Chief Judge, MANSMANN and
ALITO, Circuit Judges
(Filed February 15, l995 )
Mark A. Aronchick (Argued)
Gary A. Rosen
Randy K. Hubert
Hangley, Connolly, Epstein,
Chicco, Foxman & Ewing
Philadelphia, PA 19102
James B. Jordan
Office of City Solicitor
Philadelphia, PA 19102
Attorneys for Appellants
Sarah B. Vandenbreak
Office of District Attorney
Philadelphia, PA 19102
Attorney for Amicus-Appellant Lynne Abraham
David Richman (Argued)
Pepper, Hamilton & Scheetz
Philadelphia, PA 19103-2799
Attorney for Appellees
OPINION OF THE COURT
SLOVITER, Chief Judge.
The lawsuit that underlies these appeals arises out of
the decade-long efforts of a class of incarcerated prisoners to
ameliorate the severe overcrowding and harsh conditions existing
in the prisons maintained and supervised by the City of
Philadelphia, Pennsylvania (hereafter Philadelphia or City). The
Philadelphia defendants have not contested the need for
substantial and meaningful improvements. Indeed, they entered
into two consent decrees and stipulated revisions thereto in
which they agreed to make massive improvements and agreed to have
the district court supervise the steps they planned to implement
those improvements. It is also not contested that Philadelphia
did not meet the deadlines for some of the obligations it
undertook in the consent decrees and stipulations. Ultimately,
because of Philadelphia's failure to comply, the district court
entered the series of orders which are the subject of these
appeals.1
1 In prior appeals we reversed the district court's
dismissal of the case on res judicata and abstention grounds;
Harris v. Pernsley (Harris I), 755 F.2d 338 (3d Cir.), cert.
denied, 474 U.S. 965 (1985), and twice affirmed the district
court's denial of the District Attorney's motion to intervene in
this proceeding. See Harris v. Pernsley (Harris II), 820 F.2d
592 (3d Cir.), cert. denied, 484 U.S. 947 (1987); Harris v.
Reeves (Harris III), 946 F.2d 214 (3d Cir. 1991), cert. denied,
112 S. Ct. 1516 (1992).
Before us in this opinion is the City of Philadelphia's
appeal from the order of October 5, 1993 imposing on it
stipulated penalties totalling $584,000 (No. 93-1997), the order
of October 28, 1993 directing production of the Facilities Audit
(No. 93-2116), and the order of November 1, 1993 dismissing the
City's Motion to Modify the December 30, 1986 Decree and the
March 11, 1991 Decree as a contempt sanction for the City's
failure to timely submit the Facilities Audit and Ten-Year Plan
by the dates previously stipulated (No. 93-2117).
These appeals were consolidated for argument with three
related appeals. The appeal from the injunction entered by the
district court governing the occupancy and conditions of
confinement of the City's newly constructed prison facility
denominated the Alternative and Special Detention Central Unit
(No. 93-2034) was remanded to the district court because the
issues raised by the City on appeal had not been raised by it in
the district court. See Harris v. City of Philadelphia (Harris
IV), 35 F.3d 840 (3d Cir. l994). Still pending and the subject
of separate opinions filed today are the appeal from an order
adjudicating the City in contempt and imposing fines for
noncompliance with an order requiring occupancy of a substance
abuse and treatment facility, Harris v. City of Philadelphia, No.
94-1286 (3d Cir. ____, 1995) (Harris VI), and the appeal from
another order adjudicating the City in contempt and imposing on
it fines for its modification of procedures for designation of
bailable pretrial detainees for release, Harris v. City of
Philadelphia, No. 93-1988 (3d Cir. ____, 1995) (Harris VII).
None of these appeals directly challenges the
stipulated maximum allowable population of prisoners to be
housed, although that issue remains the raison d'être of all the
orders and decrees that followed. The three appeals that are the
subject of this opinion instead concern the comprehensive Prison
Planning Process (PPP) agreed to in the 1991 Consent Decree as an
orderly planning process for the construction, operation and
management of the Philadelphia prison system. Necessarily
implicated in this series of appeals is the role of the district
court in overseeing the administration of county prison
facilities pursuant to a consent decree designed to ameliorate
overcrowding, and the use of its contempt power for alleged
noncompliance with orders voluntarily undertaken.
I.
BACKGROUND OF THE CASE AND THE CONSENT DECREES
In 1982 a group of inmates suffering from overcrowding
at Holmesburg Prison filed a class action pursuant to 42 U.S.C.
§§ 1983 and 1988 claiming violations of the First, Eighth, Ninth
and Fourteenth Amendments against the City of Philadelphia and
individual city officials who were responsible for administering
the Philadelphia prison system. An amended complaint filed April
19, 1983 asserted claims for constitutional deprivation under the
Eighth and the Fourteenth Amendments pursuant to 42 U.S.C. §
1983. In 1986, the lawsuit was expanded from its focus on
Holmesburg Prison to encompass the Philadelphia prison system as
a whole, and the plaintiff class was enlarged to include all
past, present and future inmates in the Philadelphia prison
system.2 We have been advised by counsel that the inmates are
both pretrial detainees (on either nonbailable offenses or who
cannot post the required bail) and sentenced prisoners, in
approximately equal proportions. Argument Transcript at 6.
In late 1986, the inmates negotiated a settlement with
the City in which they gave up their claims for damages in return
for, inter alia, the construction of a 440-bed detention facility
in downtown Philadelphia by December 31, 1990 and a maximum
allowable population for the then-existing facilities of the
Philadelphia prison system. App. at 91-92. On December 30,
1986, the district court approved the settlement and the next day
entered a Consent Order (the "1986 Consent Decree") consistent
with its terms.
By 1989 it became clear that the 440-bed detention
facility would not be available by December 31, 1990. In an
attempt to alleviate the continued overcrowding, the City and the
plaintiff class negotiated an agreement which strengthened
2
In a somewhat parallel action, the Philadelphia Court of
Common Pleas found some twenty years ago that conditions in the
Philadelphia prison system violated the prohibitions against
cruel and unusual punishment in the Eighth Amendment to the
United States Constitution. That court retains control over
aspects of the prison system primarily related to prison
conditions pursuant to a consent decree entered thereafter by the
City and representatives of that plaintiff class. See Jackson v.
Hendrick, No. 71-2437 (Pa. Ct. of Common Pleas, Apr. 7, 1972),
aff'd, 309 A.2d 187 (Pa. Commw. Ct. 1973), modified on other
grounds, 321 A.2d 603 (Pa. 1974). In 1986, the Pennsylvania
Supreme Court reviewing a subsequent remedial decree noted that
as a result of subsequent actions taken there were "vast
improvements in prison conditions." See Jackson v. Hendrick, 503
A.2d 400, 407 (Pa. 1986).
population control measures, renewed the City's commitment to new
prison construction, and required the City to plan rationally to
meet the needs of existing and future inmates. The parties
submitted this proposed stipulation to the district court for
approval, see Supp. App. at 1535, 1693, which was not
forthcoming.3 Consequently, on February 14, 1990, the plaintiff
class moved to vacate the 1986 Consent Decree and to reinstate
the Second Amended Complaint. See Supp. App. at 1674-1703. The
City opposed this motion and urged the court to consider that it
had already agreed to devise a comprehensive prison plan dealing
with ten-year population projections, prison construction and
renovation, management and training, information systems,
incarceration alternatives, and state court reforms, and had
already spent $250,000 on consultants to help meet its
responsibilities. See Supp. App. at 1524-51. On August 31, 1990
the plaintiff class moved the court for emergency relief from the
continued overcrowding. In its response, the City concurred in
the relief suggested and informed the court that the City had
formulated a Prisons Master Plan as well as a Justice Facilities
and Systems Improvement Strategy. Supp. App. at 1542-43.
Continued negotiation led the parties to enter into a
new Stipulation and Agreement culminating in another Consent
Order approved by the district court (the "1991 Consent Decree"),
this one considerably more detailed, which contained a series of
3
Neither party has offered an explanation, and in light of
subsequent events it is no longer relevant.
stipulations and remedial steps aimed at alleviating the
overcrowding in the prison system.4 In the 1991 Consent Decree,
the parties stipulated that
4. New prison construction is inadvisable without
detailed consideration of the future demands to be made on the
Philadelphia prison system in light of: City population trends;
trends in the crime rate; the habitability of existing prison
facilities and the feasibility of their rehabilitation; the
likelihood and effect of changes in the administration of
criminal justice in Philadelphia; and the availability of
alternatives to confinement.
5. Once the immediate and longer-range needs of the
Philadelphia Prison System are determined realistically, how best
to meet those needs should be addressed in a rational planning
process.
App. at 113.
As a long-term solution, the parties agreed to
undertake a comprehensive Prison Planning Process, which entailed
evaluation of the current facilities and a carefully considered
long-range plan in addition to the construction of new facilities
and the repair of existing facilities. The parties also agreed
to short-term remedies, one relating to a revised admissions
moratorium and release mechanism and the other relating to the
City's undertaking to provide a substance abuse program.
With respect to the long-term solution, Paragraphs
11-15 of the 1991 Consent Decree oblige the City to implement the
Prison Planning Process and the Mayor to appoint a Criminal
4
The City agreed to construct a facility or facilities
"capable of housing in the aggregate at least 1000 inmates by May
25, 1994." ¶ 14, App. at 115. The parties stipulated that the
City's obligation to construct a 440-bed downtown facility was
thereby superseded. ¶ 12, App. at 115.
Justice Project Coordinator responsible for carrying out the
activities specified in the Prison Planning Process. App. at
114-15. The Prison Planning Process addresses not only the
physical plant of the Philadelphia prison system but also the
operational aspects of running the prison system. It includes
population projections, a population management plan,
promulgation of physical and operational standards, a capital
projects management plan, an operational management plan, and a
management information service plan. App. at 129-35. The City
notes, and we agree, that implementation of these plans
necessarily involves numerous state and local agencies. The 1991
Consent Decree explicitly contemplates "the involvement of the
Philadelphia judiciary, the office of the District Attorney, and
the Defender Association." App. at 113-14.
Of most relevance to this appeal, the City undertook to
develop a plan for promulgating physical and operational
standards consistent with "constitutional standards" and
"correctional industry standards of the American Correctional
Association." See note 5 infra. This plan contemplates a three-
step process. Paragraph C.1. of the Prison Planning Process
requires the City to develop physical plant standards and general
design guidelines for renovation and new construction capital
projects. App. at 131.5
5
Such standards "shall comply with constitutional
standards and requirements for the incarceration of sentenced
prisoners and pretrial detainees, where applicable, and shall
comply with correctional industry standards of the American
Correctional Association (ACA), with reference to those of the
American Jail Association (AJA), the Federal Department of
Paragraph C.2. requires the City to
[c]onduct an analysis of Philadelphia's existing jail
and prison facilities using the physical plant
standards and design guidelines developed pursuant to
[Paragraph C.1.] . . . to determine how each existing
facility might best be used, if at all, to house the
projected daily prison population; and develop a plan,
including implementation schedule, for necessary
physical improvements to existing facilities.
App. at 131-32. This required analysis has come to be known as
the "Facilities Audit."
Paragraph C.3. provides that the City shall "[d]evelop
a phased plan, including an implementation schedule, for the
development of such new correctional capacity as may be necessary
to house the projected prison population." App. at 132.
Paragraph C.3. refers, in turn, to Paragraph A.2.b. which
obligates the City to develop and periodically update a ten-year
projection of the inmate population, taking into account the
expected effect of anticipated case management and processing
reforms. App. at 128. Hence, the third step in the process came
to be known as the "Ten-Year Plan." See also Harris v. Reeves,
761 F. Supp. 382, 391 (E.D. Pa. 1991) (approving 1991 Consent
Decree and noting plans to develop and apply physical and
operational standards).
The 1991 Consent Decree provides that if a plan is not
submitted by its due date or if the plan which is submitted is
determined by agreement of the parties or by the court to fall
(..continued)
Justice (DOJ), the American Public Health Association (APHA), the
American Medical Association (AMA), and the American Bar
Association (ABA)." App. at 131.
short of substantial compliance or to have been submitted in bad
faith, defendants shall forfeit $500 per day for each day that no
acceptable plan is submitted, increasing to $1000 per day after
thirty days. ¶ 22, App. at 121. The City will also be subject
to a penalty of $500 per day for the first thirty days and $1000
per day thereafter for each day of delay in complying with a plan
"milestone." ¶ 27, App. at 123. All penalties "shall be used or
distributed as determined by the Court on the advice of the
parties and the Special Master." ¶ 28, App. at 124. The
district court retained jurisdiction to enforce the provisions of
the 1991 Consent Decree. ¶ 33, App. at 125.6
6
The 1991 Consent Decree also provided mechanisms for
resolution of disputes over plans. After submission of each
plan, the plaintiff class and all other affected entities have
ten days to submit comments and objections to the Special Master.
¶ 20, App. at 120. After all objections are submitted, the
parties and other affected entities, with the assistance of the
Special Master, are to attempt to resolve their differences
through negotiation. ¶ 21, App. at 120-21. If these
differences cannot be resolved within 30 days after submission of
all objections, the Special Master must submit the City's plan,
all objections, and his own recommendation to the district court,
which may then decide whether or not to approve the plan. Either
the plaintiff class or the City may request a hearing concerning
the plan at issue within ten days, or any other affected entity
may request a hearing upon a demonstration of "good cause."
¶ 21, App. at 120-21.
II.
FACTS LEADING TO THIS APPEAL
Under the 1991 Consent Decree the City was obligated to
develop physical and operational standards for the prisons by
September 6, 1991; prepare the Facilities Audit by December 6,
1991; and draft the Ten-Year Plan by July 31, 1992. App. at 138.
After the City had difficulty in meeting these dates, the parties
negotiated revisions embodied in the January 1992 Stipulation and
Agreement Amending Due Dates for Plans Comprising the Prison
Planning Process (hereafter "Amended Stipulation") (entered by
the court on January 7, 1992) to April 30, 1992, August 31,
1992, and December 31, 1992 respectively. Addenda to City's
Brief at A-68 to A-69. Paragraph 8 of the Amended Stipulation
provides that the penalties described in the 1991 Consent Decree
for late submission "are presently accruing" for those
submissions that were late, id. at A-58, but Paragraph 11
established a procedure for modification of the revised
deadlines.7 Apparently the City did not follow that procedure,
and no revision of the dates in the Amended Stipulation was made.
In return for the revised dates agreed to in the
Amended Stipulation, the parties also agreed to added teeth in
the procedure for imposition of penalties. If the City failed to
7
That procedure required submission of a "Phase 1
Schedule" by December 20, 1991 and a "Phase 2 Schedule" by
March 16, 1992, and provided that failure to submit these
schedules made defendants subject to daily penalties. Addenda to
City's Brief at A-59 to A-60.
comply with the revised dates, the daily penalties from the 1991
Consent Decree "shall immediately accrue." ¶ 13, id. at A-61.
Furthermore, the new procedure expressly authorized collection of
daily penalties without court action.
Paragraph 16 provides:
16. Any daily penalty that accrues pursuant to this
Stipulation and Agreement, including all accrued amounts, shall
be paid into the Court . . . without any further direction from
the Court and without any application to the Court by the
plaintiffs. All penalties owed by the defendants and the City
shall be paid into the Court within thirty (30) days following
receipt of the plaintiffs' demand for such payment. Plaintiffs
shall not make such demand with respect to any Plan unless and
until notified by the Special Master that the Plan was not
submitted by its Due Date in the Revised Schedule (subject to any
modification of that date pursuant to paragraph 11 hereof).
Id. at A-62 (emphasis added).
Due dates could be extended by the Special Master "upon
application by the [City] . . . supported by good cause, provided
that the application is filed with the Special Master and served
on the plaintiffs at least ten (10) days prior to the Due Date it
seeks to extend." ¶ 17, id. at A-62 to A-63. "Good cause" was
strictly defined to mean causes "not reasonably foreseeable"
which are "entirely" beyond the City's control and without its
fault or negligence.
In January 1992, a new mayor for the City of
Philadelphia, Edward G. Rendell, was sworn into office. On
January 7, 1992, as one of the first acts of the new
administration, the City filed a Motion to Modify the December
30, 1986 Decree and the March 11, 1991 Decree. Specifically, the
City moved for an order of the court pursuant to Federal Rule of
Civil Procedure 60(b)(4)-(6) to vacate the provisions of the
consent decrees concerning population limits and the non-
admission or release of pre-trial detainees. The City gave three
grounds for the proposed modification: First, the consent decrees
were ultra vires acts by the previous administration because the
City was obliged under state law to follow state court
incarceration orders and it lacked the power to bind future
administrations in the administration of police power authority;
Second, experience with the qualified admissions moratorium and
the release mechanism demonstrated that it was no longer
equitable to implement the decrees for reasons of public safety
and the orderly administration of justice; Third, the Supreme
Court's decision in Wilson v. Seiter, 501 U.S. 294 (1991),
holding that an Eighth Amendment violation requires proof of
"deliberate indifference" by prison administrators, constituted a
change in law applicable to modification of consent decrees.
Notably, in the Motion to Modify the City re-committed
itself to the Prison Planning Process, stating:
This administration . . . recognizes that the prisoners
and the public have legitimate interests in the
enlargement and improvement of Philadelphia's prisons
and in sound penological policies. In fact, consistent
with the desire of this Court to expedite the
construction of sound prisons, on December 11, 1991,
then Mayor-elect Rendell wrote then Managing Director
Pingree asking that the prison planning and
construction schedule be speeded up. As Mayor, Mr.
Rendell will direct the implementation of this request
as urgent City policy.
App. at 223.
In September 1992, the district court set an
evidentiary hearing for November 9, 1992 on the City's Motion to
Modify, but by order of November 6, 1992 postponed the hearing
until January 25, 1993 and required the City to submit proposed
findings of fact and conclusions of law in support of that motion
by November 30, 1992. In compliance, the City submitted its
proposed findings and conclusions, which relied in part on some
of the data developed by its consultant, the Criminal Justice
Institute, in connection with its preparation of the Facilities
Audit and the Ten-Year Plan, even though those documents had yet
to be submitted.8
At a regular status hearing on December 18, 1992, the
court suggested that the City should comply with its obligations
under the Prison Planning Process required by the 1991 Consent
Decree before it would adjudicate the Motion to Modify, App. at
665-67, even though the City was willing to allow the plaintiff
class to proceed with discovery of its experts in connection with
the Motion to Modify. App. at 667. By order of January 11, 1993
the court, finding that "[t]he conduct of the City necessitates
the postponement of the hearing on the Motion to Vacate until the
conclusion of the process contemplated by the Consent Decree,"
expressly linked the scheduling of discovery and a hearing date
8
Specifically, the proposed findings relied upon (1) a
report entitled An Alternative-to-Incarceration Plan for
Philadelphia: Findings and Proposed Strategies, November 1992,
prepared by the Crime and Justice Research Institute and (2)
material prepared by the Criminal Justice Institute. Addenda to
City's Brief at A-38.
on the Motion to Modify to the City's submission of the
Facilities Audit. See Supp. App. at 1571-72. A rescheduled
hearing was tentatively set for April 1993.
The City had submitted its proposed physical standards
and design guidelines under subparagraph C.1. on August 14,
1992.9 App. at 773, 1276-77. Plaintiffs responded with comments
and objections to the standards, and the City submitted revised
standards. The parties then entered into some negotiations, App.
at 773, 1276-77, and discussed their differences at several
meetings with the Special Master, but apparently he never
submitted the physical standards to the district court for
approval. App. at 1276-77. Therefore, the district court still
has neither approved or disapproved these standards.
Although neither the 1991 Consent Decree nor the
Amended Stipulation relieved the City from its obligation to
proceed with the Facilities Audit and the Ten-Year Plan, the City
submitted neither document by the stipulated dates of August 31,
1992 and December 31, 1992. This led to the extensive chronology
of missed deadlines and broken promises set forth in the
margin.10
9
Because the City had failed to submit the physical
standards by April 30, 1992, as required by the Amended
Stipulation, the district court, following a hearing, imposed
$78,000 in penalties with the possibility for remission.
Thereafter, the court refused the requested remission because the
City had not requested an extension prior to the due date nor
shown good cause for delay. Supp. App. at 1141, 1557. The City
did not appeal from this imposition of penalties.
10
By way of letter of September 14, 1992, the plaintiffs
reminded the City that it was required to pay stipulated daily
On October 5, 1993 the district court sua sponte found
that the City's conduct constituted "a pattern of contempt of the
Consent Decree which should not be permitted to continue."
Addenda to City's Brief at A-4. The court ordered that the City
pay $584,000 in fines due and owing, ordered submission of both
documents within ten days, and scheduled a hearing "to consider
(..continued)
penalties upon demand. Supp. App. at 1558. On December 18,
1992, at a status conference the City represented that both the
Facilities Audit and the Ten-Year Plan could be ready by mid-
February although counsel for the City noted, "[p]art of the
problem is we can't do an audit until we have agreed upon
physical standards." App. at 620-21. On December 21, 1992 the
City requested an extension for submission of the Facilities
Audit and the Ten-Year Plan. Supp. App. at 1565. It projected
that the two documents would be completed by March or April 1993
but gave no firm date for submission. On March 24, 1993, the
City sent a letter to plaintiffs and to the court projecting
submission on or before June 1, 1993. Addenda to City's Brief at
A-26. Then, on May 10 the City sent another letter advising
submission would not be before the end of June. Id. at A-22.
The court then rescheduled the hearing on the City's Motion to
Modify to December 20, 1993. Id. at A-3. On June 9, 1993 the
plaintiff submitted a demand for penalties for the City's
tardiness. Id. at A-3. As of that date, the accrued stipulated
penalties totaled $267,000 for 282 days of default in submitting
the Facilities Audit and $145,000 for 160 days of default in
submitting the Ten-Year Plan.
At the end of June the City sent yet another letter
requesting a further extension of up to thirty days. Id. at
A-21. On July 29, the City wrote that it hoped that the
documents would be complete by the end of August. Id. at A-17.
The Special Master wrote to the City on August 27, 1993
requesting an estimate when the documents would be submitted, but
there was no reply from the City and no submission of the
Facilities Audit or the Ten-Year Plan. On September 3, 1993 the
plaintiffs demanded payment of stipulated penalties totalling
$584,000 for the City's failure to submit the Facilities Audit
and the Ten-Year Plan without receiving extensions of time for
good cause. Id. at A-3 to A-4. The City ignored the demands for
the stipulated penalties.
imposition of additional accrued fines and/or whatever other
measures of coercive civil contempt necessary to obtain
submission of the Facilities Audit and Ten-Year Plan, including
but not limited to dismissal [of the City's] . . . Motion to
Modify." See Addenda to City's Brief at A-5. In the order, the
court noted that one of the named defendants, Commissioner J.
Patrick Gallagher, Superintendent of the Philadelphia Prison
System, had written a letter stating that there were 5,400 beds
for 5,000 inmates, which appeared to be based on conclusions from
the Facilities Audit that had not yet been submitted as required.
Id. at A-4.
The City, which had still not made the required
submissions, moved on October 15, 1993 for an extension until
January 15, 1994. The court granted that motion as to the Ten-
Year Plan but ordered the Facilities Audit to be submitted
"forthwith in whatever form it presently exists, whether as a
preliminary outline, draft, text subject to review, etc." Id. at
A-16.
On October 29, 1993, the court held what all parties
agree was a contempt hearing to determine further coercive civil
contempt sanctions needed to obtain submission of the late
material. See App. at 1206-1324. Prior to this hearing the
plaintiff class had sought to obtain production of the Facilities
Audit and the Ten-Year Plan by issuing a subpoena for the
production of the documents. At the October 29 hearing the court
considered arguments from the City why the subpoena should be
quashed, why the City had been unable to comply with the
deadlines for submission of the Facilities Audit, and why it
should not dismiss the Motion to Modify as a sanction for civil
contempt.
In the course of that hearing, David L. Cohen, Mayor
Rendell's Chief of Staff, testified that the City had completed
the Audit by April 30, 1993 but that because it had decided to
fully integrate the Facilities Audit with the Ten-Year Plan, it
declined to produce the Facilities Audit on the ground that it
contained materials that it considered to be subject to attorney-
client privilege and the work product doctrine. App. at 1249-86.
Plaintiffs' counsel introduced as evidence a transcript of the
testimony of Commissioner Gallagher in the state court
proceedings stating that the Facilities Audit was in existence.
App. at 1229-33. The City objected, arguing that Commissioner
Gallagher's statements were not on this record, and also argued
that Commissioner Gallagher's letter as to the number of
available beds, previously referred to by the court, "was
erroneous [and] . . . in no way represents the policy of the
City." App. at 1215-16. The City admitted that it had received
an eight-volume report from its experts from which the Facilities
Audit could be redacted. It stated that it was willing to submit
the Facilities Audit without further review but had not yet done
so because the October 5 order required production of both the
Facilities Audit and the Ten-Year Plan which it was not yet
prepared to produce. App. at 1244-46.
At the conclusion of the October 29 hearing, the court
announced it would accept the Facilities Audit by November 8,
1993 but would sanction the City by dismissing the City's Motion
to Modify. It so ordered on November 1, 1993 after finding the
City to be in contempt for violating the 1991 Consent Decree,
Paragraph 16 of the Amended Stipulation, and the October 5 order.
See Addenda to City's Brief at A-32 to A-33. In dismissing the
City's Motion to Modify, the court did not articulate whether
this was a dismissal with or without prejudice or whether the
City might petition for leave to refile once it had submitted the
documents.
In a memorandum opinion of November 17, 1993 sur the
November 1 order dismissing the Motion to Modify, the district
court criticized the City's "deliberate strategy of selective
compliance with the court's orders." Id. at A-36. It found the
City's claim of ignorance and lack of funds to be patently
pretextual and found there was clear and convincing evidence that
the City had failed to comply with a valid court order. Id. at
A-43 to A-44.
On November 8, 1993, the City finally submitted the
Facilities Audit and on January 14, 1994 it submitted the Ten-
Year Plan. App. at 77, 81.
The orders appealed in Nos. 93-1977 and 93-2117 are
final decisions within the scope of 28 U.S.C. § 1291. See
Inmates of Allegheny County Jail v. Wecht, 874 F.2d 147 (3d
Cir.), vacated on other grounds, 493 U.S. 948 (1989), on remand
893 F.2d 33 (3d Cir. 1990); Commonwealth of Pennsylvania v. Local
Union 542, Int'l Union of Operating Engineers, 552 F.2d 498 (3d
Cir.), cert. denied, 434 U.S. 822 (1977). The order appealed in
No. 93-2116 is an injunction over which we would have
jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).
III.
DISCUSSION
The imposition of contempt is reviewed under an abuse
of discretion standard and will only be disturbed if there is an
error of law or a clearly erroneous finding of fact. United
States v. Sarbello, 985 F.2d 716, 727 (3d Cir. 1993). A finding
of civil contempt must be supported by clear and convincing
evidence. Quinter v. Volkswagen of America, 676 F.2d 969, 974
(3d Cir. 1982). We determine on a plenary basis whether the
district court committed an error of law. American Greetings
Corp. v. Dan-Dee Imports, Inc., 807 F.2d 1136, 1146-49 (3d Cir.
1986).11 We review the sanction imposed for civil contempt for
abuse of discretion. See Delaware Valley Citizens' Council v.
Commonwealth of Pennsylvania, 678 F.2d 470, 478 (3d Cir.), cert.
denied, 459 U.S. 969 (1982). We also review the imposition of
stipulated penalties under an abuse of discretion standard. See
Martin v. Cooper Elec. Supply Co., 940 F.2d 896, 908 (3d Cir.
1991), cert. denied, 112 S. Ct. 1473 (1992). The City does not
contest the finding of fact that it was late with the submissions
11
The City's contention that our review of a finding of
civil contempt is plenary is based on a misreading of American
Greetings. In American Greetings, there were two contempt orders
on appeal. One of the two was reversed because the preliminary
injunction on which it was based was insufficiently specific, a
legal issue. We upheld the other contempt order which "clearly
[fell] . . . within the scope of [the underlying] Consent Order"
applying a much more limited review. 807 F.2d at 1148.
nor does it raise any legal question over the proper
interpretation of the consent decree in these appeals. Thus, we
review the orders at issue in these appeals for abuse of
discretion.
The City makes essentially three arguments in its
appeal of the imposition of monetary penalties and the dismissal
of its Motion to Modify as a civil contempt sanction. First, it
claims it was not afforded due process before being adjudicated
in contempt and before imposition of civil contempt sanctions.
Second, it contends it was unable to meet the deadlines because
of unanticipated delays, and that inability to comply with a
court order despite diligently attempting to do so is an absolute
defense to contempt. Third, it contends the district court
abused its discretion by imposing the "severe" and "punitive"
contempt sanction of dismissing the City's Motion to Modify the
Consent Decree, when less severe remedies were available to
coerce compliance and the Motion was unrelated to the
contumacious actions. We consider the City's arguments in the
context of reviewing each order of the district court in turn.
A.
The October 5, 1993 Order
In the October 5, 1993 order, the district court
recapitulated the relevant facts, the City's failure to make the
submissions when due, and the various communications from the
City delaying the dates when the submissions would be made. The
district court stated that "[d]efendant's conduct appears to
constitute a pattern of contempt of the Consent Decree which
should not be permitted to continue." The court then ordered the
City to pay into court the entire amount of the stipulated
penalties (denominated by the court as "fines") due and owing at
the time of plaintiffs' September 3, 1993 demand letter for
failure to submit the Facilities Audit and Ten-Year Plan when
due. The court also ordered defendants to submit the Facilities
Audit and Ten-Year Plan within ten days and set a hearing to
consider imposition of additional accrued fines or other measures
of coercive civil contempt. Addenda to City's Brief at A-4 to
A-5.
We believe that notwithstanding the district court's
reference to contempt, we should not analyze the October 5, 1993
order as an order for civil contempt. There is no explicit
finding of contempt, such as that contained in the Order of
November 1, 1993, which expressly states, "[t]he defendants are
found to be in contempt of the following court orders . . . ."
The reference to the defendants' "pattern of contempt" in the
October 5 order appears to be descriptive rather than a formal
finding of contempt. Thus, although the November 1, 1993 order
clearly is one of civil contempt and must be analyzed as such, we
view the October 5, 1993 order as the imposition of stipulated
penalties.
As the City argues, due process does require notice and
a hearing before a finding of contempt is made and before the
imposition of contempt sanctions so that the parties "have an
opportunity to explain the conduct deemed deficient . . . and
that a record will be available to facilitate appellate review."
Newton v. A.C. & S. Inc., 918 F.2d 1121, 1127 & n.5 (3d Cir.
1990). For an indirect contempt, such as failure to obey a court
order, it is appropriate to give notice by an order to show cause
and to hold a hearing. See Interdynamics, Inc. v. Firma Wolf,
653 F.2d 93, 97 (3d Cir.), cert. denied, 454 U.S. 1092 (1981);
see also Roe v. Operation Rescue, 920 F.2d 213, 217 (3d Cir.
1990) (due process before imposing civil contempt requires an
"opportunity granted at a meaningful time and in a meaningful
manner for a hearing appropriate to the nature of the case").
However, the City did not object in the district court
on constitutional grounds to the court's procedure in finding it
had violated the Amended Stipulation without entering an order to
show cause and without giving the City an opportunity to present
evidence. As a general rule we will not consider objections that
have not been raised in the district court. See Pritzker v.
Merrill Lynch, Pierce, Fenner & Smith, 7 F.3d 1110, 1115 (3d Cir.
1993); In re American Biomaterials Corp., 954 F.2d 919, 927 (3d.
Cir. 1992); Frank v. Colt Indus., Inc., 910 F.2d 90, 100 (3d Cir.
1990); Flick v. Borg-Warner Corp., 892 F.2d 285, 287 (3d Cir.
1989); Newark Morning Ledger Co. v. United States, 539 F.2d 929,
932 (3d. Cir. 1976). Moreover, this general rule "applies with
added force where the timely raising of the issue would have
permitted the parties to develop a factual record." American
Biomaterials, 954 F.2d at 927-28.
The City contends that it should be excused for failing
to raise this objection because it had no opportunity to do so in
light of the district court's sua sponte entry of the October 5
order. Therefore, it argues, it is not barred from raising the
due process issue for the first time in this court.
We need not consider whether the City has a valid
excuse for failing to object in the district court or whether its
failure to raise the issue in the district court precludes our
consideration because, as we suggested earlier, we believe the
order of October 5 directing payment of the stipulated penalties
need not have been denominated a civil contempt order.12
Paragraph 13 of the Amended Stipulation provides that
If the defendants fail to comply with the Due Date in
the Revised Schedule . . . then the daily penalties
described in paragraph 7 hereof shall immediately
accrue for that Plan . . . . Separate penalties shall
accrue for each Plan that is not submitted by its Due
Date in the Revised Schedule . . . .
Paragraph 16 continues: "Any daily penalty that accrues pursuant
to this Stipulation and Agreement, including all accrued amounts,
12
In light of our conclusion, we do not address the
plaintiffs' argument that the City could have filed a motion
under Fed.R.Civ.P. 60(b)(4) to relieve it of the order on the
ground it was void for failure to accord it due process.
shall be paid into the Court . . . without any further direction
from the Court and without any application to the Court by the
plaintiffs." (emphasis added). Thus, the court's order of
October 5 was, in effect, the imposition of liquidated or
stipulated penalties, and the reference to contempt for that
purpose was extraneous.
Consent decrees are interpreted under ordinary contract
law principles. See Fox v. United States Dep't of Hous. & Urban
Dev., 680 F.2d 315, 319 (3d Cir. 1982) ("Although consent decrees
are judicial acts, they have many of the attributes of contracts
voluntarily undertaken."); Halderman v. Pennhurst State Sch. and
Hosp., 901 F.2d 311, 318-19 (3d Cir.) (treating Final Settlement
Agreement as a contract), cert. denied, 498 U.S. 850 (1990);
Sansom Comm. v. Lynn, 735 F.2d 1535, 1539 (3d Cir.) (same), cert.
denied, 469 U.S. 1017 (1984). It follows that a consent decree
may contain a provision for liquidated damages for breach of the
decree in the same manner as a contract which sets the damages at
an amount that is reasonable in light of the anticipated or
actual loss caused by the breach and the difficulties of the
proof of the loss. See Restatement (Second) of Contracts § 356
(1981). Such a liquidated damages clause "saves the time of
courts, juries, parties and witnesses and reduces the expense of
litigation." Id. cmt. A.
In this case, the Amended Stipulation to the 1991
Consent Decree explicitly obliged the City to pay over the
accrued fines to the plaintiff class without court intervention.
The parties might have made some other arrangement but they chose
to agree to self-executing penalties. In return for this
automatic imposition of penalties, the City received, inter alia,
an extended deadline for its voluntarily undertaken obligation to
produce the Facilities Audit and Ten-Year Plan. This was
material upon which the entire Prison Planning Process was
dependent. In light of the plain language of the Amended
Stipulation, we find completely unpersuasive the City's argument
that its consent to the imposition of stipulated penalties did
not waive its rights to notice and a hearing before those
penalties could be imposed and collected.
The City argues that under the 1991 Consent Decree and
the Amended Stipulation, the district court was required to find
that there was no good cause for the City's delays in submission
of the documents before the court could impose the penalties to
which the City had agreed. Under Paragraph 17 of the Amended
Stipulation, "[a]ny Due Date for a Plan specified in the Revised
Schedule . . . may be extended by the Special Master upon
application by the defendant supported by good cause, provided
that the application is filed with the Special Master and served
on the plaintiffs at least ten (10) days prior to the Due Date it
seeks to extend." Addenda to City's Brief at A-62 to A-63
(emphasis added). The Stipulation defines "good cause" as:
Unavoidable delays in complying with a Plan Due Date
caused solely by causes not reasonably foreseeable by
the parties and which are entirely beyond the control
and without the fault or negligence of the defendants
or their agents or their independent contractors, . . .
and shall include, without limitation, the following
events: Acts of God, acts of war, quarantine
restrictions, general strikes throughout the relevant
trades, freight embargoes not caused or participated in
by defendants, fire, flood, epidemics, and weather of
unusual severity.
Id.
The City contends that the district court should have
held a hearing or hearings to determine whether the City's
explanation of the delays constituted good cause. The City's
argument is disingenuous. It never candidly faces up to the fact
that under the Amended Stipulation allowance of one or more
extensions for "good cause" is conditioned on the City's timely
application. The City never made any such "good cause"
application. Instead of making the required "application," the
City announced its expected tardiness in a series of letters,
some of which requested the court to extend the due dates, but
none even purported to show "good cause" as defined. Moreover,
the only formal motion the City made, the motion of October 15,
1993, was not timely, since it was filed thirteen months after
the Facilities Audit was due and nine months after the Ten-Year
Plan was due. The district court justifiably concluded that this
pattern of conduct evinced a pattern of disregard and
noncompliance with even the most elementary procedures to which
the City had committed itself. By its own actions, the City
forfeited its right to a good cause hearing before imposition of
the stipulated penalties.
When the City did have the opportunity to state the
reasons for its failure to timely produce the Facilities Audit
and Ten-Year Plan, it attributed its failure to unanticipated
delays and the difficulty of coordinating multiple agencies and
branches of governments to formulate the plans. If the Order of
October 5, 1993 were an adjudication of civil contempt, the City
would have a valid defense were it able to show physical
impossibility. See Halderman v. Pennhurst State Sch. & Hosp.,
673 F.2d 628, 638 (3d Cir. 1982) (in banc), cert. denied, 465
U.S. 1038 (1984); see also Newman v. Graddick, 740 F.2d 1513
(11th Cir. 1984). There is general support for the proposition
that a defendant may not be held in contempt as long as it took
all reasonable steps to comply. See, e.g., Securities and Exch.
Comm'n. v. AMX, Int'l, Inc., 7 F.3d 71, 73 (5th Cir. 1993); New
York State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1351 (2d
Cir. 1989) (contempt may be found only if party did not
diligently attempt to comply in reasonable manner), cert. denied,
495 U.S. 947 (1990); National Advertising Co. v. City of Orange,
861 F.2d 246, 250 (9th Cir. 1988).
However, the burden is that of the defendant to
introduce evidence beyond "a mere assertion of inability," and to
show that it has made "in good faith all reasonable efforts to
comply." See Citronelle-Mobile Gathering, Inc. v. Watkins, 943
F.2d 1297, 1301 (11th Cir. 1991) (citing United States v. Ryan,
402 U.S. 530, 534 (1971)); see also United States v. Millstone
Enterprises, Inc., 864 F.2d 21, 24 (3d Cir. 1988).
One of the unanticipated delays to which the City
refers is the failure of the district court to approve the
physical plant standards and general design guidelines the City
had previously submitted. The City contends this delay
interfered with its preparation of the Facilities Audit and Ten-
Year Plan, because the Facilities Audit was to be based on the
physical standards. At the outset, we note that had the district
court issued a ruling on the proposed standards and design
guidelines submitted by the City, it is likely that at least some
of the subsequent delay would have been avoided. Nonetheless, at
oral argument the City conceded that it would have been possible
for it to have prepared the Facilities Audit using the physical
standards it proposed, and indeed ultimately it used the proposed
standards even without court approval. Argument Transcript at
42-43.
Although we recognize that proceeding on the basis of
as-yet-unapproved physical standards may have subjected the City
to additional cost if amendment to the Facilities Audit were
required to accommodate standards the court subsequently adopted,
the possibility of such a cost increase did not make the City's
submission of the Facilities Audit "impossible." Moreover, it is
undisputed that the City had the opportunity to seek an extension
of time from the district court on that basis, but did not do so.
In Philadelphia Welfare Rights Org. v. Shapp, 602 F.2d
1114 (3d Cir. 1979), cert. denied, 444 U.S. 1026 (1980), we
upheld the district court's modification of a consent decree
based on its finding that despite the City's good faith efforts,
performance was impossible and circumstances were beyond the
parties' contemplation and defendant's control. See id. at 1120.
In contrast, in this case the district court found that the City
was not unable to comply with the 1991 Consent Decree and the
Amended Stipulation. That finding was not clearly erroneous.
At the hearing before the district court on October 29,
1993, the City sought to explain its failure to produce the
Facilities Audit on the ground that it had planned to produce an
integrated document with both the Facilities Audit and the Ten-
Year Plan, and that it was not yet ready to produce the Ten-Year
Plan. The district court rejected this explanation, noting that
the "'decision' to complete the Audit and Ten-Year Plan
simultaneously was made solely by the defendants, without the
agreement of the plaintiff class or approval of the court."
Addenda to City's Brief at A-47.
The court's finding is fully supported in the record.
Although the City argues that it was not until it received the
Order of October 28, 1993 directing it to submit the Facilities
Order "forthwith" and the Ten-Year Plan at a later date that it
understood that the district court would permit submission of the
Facilities Audit separately, nothing in the language of the 1991
Consent Decree suggests that the two documents must be
integrated. In fact, the agreement of the City to submit the two
documents on two different and sequential dates shows that the
City must have understood that the two documents were to be
distinct. The Consent Decree did not preclude combination of the
two documents, but it contains no provision that authorized late
submission of the Facilities Audit if combined with the Ten-Year
Plan. In any event, both were late.
A party may not rely on its unilateral interpretation
of the requirements for compliance in complex institutional
reform litigation as an excuse for noncompliance. See Pennhurst,
673 F.2d at 637-38 (criticizing government officials for
resorting to self-help in interpretation of consent decree after
enactment of restrictive legislation rather than seeking relief
under Federal Rules of Civil Procedure 60(b)(5) or (6)). Thus we
reject the City's attempt to excuse its noncompliance on the
supposed link between the Facilities Audit and the Ten-Year Plan.
The district court rejected the City's proffered
defense of inability to comply, noting that Mayoral Chief of
Staff Cohen had admitted that drafts of the Facilities Audit and
Ten-Year Plan were already available and under review and that
the "reasons asserted [by the City] to justify [the motion for an
extension] were factually in error." Addenda to City's Brief at
A-41 to A-42. It found that the City's asserted claim of
"ignorance of the requirements of the Consent Decree and efforts
required to effect compliance for the first eight months of [the
Rendell] . . . administration . . . belies the competence of
counsel and the history of this case" in light of the numerous
meetings between the Special Master, the parties and the court.
Id. at A-43. It also found that the City's asserted claim of
lack of funds was inaccurate, given the availability of funding
from City bonds authorized for that purpose. Those findings are
not clearly erroneous.
Nothing that the City has argued convinces us that it
was in fact unable to comply with a schedule to which it had
agreed and which had been revised at its request.13 It has
13
In Public Citizen Health Research Group v. Brock, 823
F.2d 626 (D.C. Cir. 1987), on which the City relies, the court
pointed to nothing in the record that supports its claim of good
cause for failure to comply, and certainly nothing that meets the
strict definition of that term in the consent decree.
Based thereon, the imposition of stipulated penalties
of $584,000 was not an abuse of discretion. We will therefore
affirm the district court's order of October 5, 1993.
B.
The October 28, 1993 Order
The Order of October 28, l993 granted the City's motion
for an extension of time to submit the Ten-Year Plan but denied
the motion for an extension of time to submit the Facilities
Audit, and ordered its submission "forthwith." As noted in the
previous section, the City submitted the Facilities Audit on
November 8, 1993 and the Ten-Year Plan on January 14, 1994.
Thus, we must consider whether this appeal is moot, which depends
on whether there exists a "'subject matter upon which the
judgment of the court can operate' to make a substantive
determination on the merits." Jersey Cent. Power & Light Co. v.
State of New Jersey, 772 F.2d 35, 39 (3d Cir. l985) (quoting Ex
Parte Baez, 177 U.S. 378, 390 (l900)).14
(..continued)
was reviewing an application for contempt brought against OSHA
for its lengthy delays in setting standards. The court declined
to hold OSHA in contempt but required that it adhere to dates it
set out in its response to the contempt motion. OSHA, unlike the
City in this case, had not signed a consent decree specifying
dates certain for compliance. Thus that case is inapplicable
here.
14
The "availability of effective relief is one measure of
the existence of a continuing controversy between parties with
cognizable interests in the outcome" and "also may indicate the
The City responds that because the Order of October 28
"put [it] in the position, on October 29th, of having to stand in
contempt for not having produced [the] audit," it is not moot.
See Argument Transcript at 16-17. The City also implies that it
may be subject to daily fines for violation of the October 28
order. Argument Transcript at 18. As a general principle, once
a party has complied with a court order or injunction, and has
not been penalized or suffered any prejudice that could be
remedied on appeal, the appeal is moot. See generally 13A
Charles A. Wright, et al., Federal Practice and Procedure §
3533.10 (1984). In the case of the October 28 Order, the
district court imposed no fines and the City points to nothing in
the record that suggests such an order is either imminent or
forthcoming.
Although we agree that the Order of October 28 is
implicated in the City's arguments in its appeal of the Order of
November 1, l993, those arguments, to the extent relevant, can be
(..continued)
presence of a continuing effect of the alleged misconduct on a
complainant." International Bhd. of Boilermakers v. Kelly, 815
F.2d 912, 915-16 (3d Cir. 1987). Accord Fauconniere Mfg. Corp.
v. Secretary of Defense, 794 F.2d 350, 351-52 (8th Cir. 1986)
(appeal of preliminary injunction enjoining performance of
contract moot when stay pending appeal granted and contract
completed); Gjertsen v. Board of Election Comm'rs, 751 F.2d 199,
201-02 (7th Cir. 1984) (appeal of grant of preliminary injunction
of minimum signature requirements for primary ballots moot where
primary held and defendants did not request election to be
re-run); cf. Brill v. General Indus. Enter., 234 F.2d 465, 469
(3d Cir. 1956) (appeal of refusal to enjoin sale of corporation's
assets moot because sale consummated and "where the act sought to
be restrained has been performed, the appellate courts will deny
review on the ground of mootness").
fully explored and analyzed in the context of that appeal.
Therefore, we will dismiss No. 93-2116, the appeal from the Order
of October 28, 1993, as moot.
C.
The November 1, l993 Order
1. The Finding of Contempt
As noted earlier, the Order of November 1, l993
expressly found the City in contempt, and based that finding on
the City's failure to submit the Facilities Audit and Ten-Year
Plan by the dates required by the 1991 Consent Decree and the
Amended Stipulation, its failure to pay the stipulated penalties
when they were demanded by plaintiffs' letters of June 9, l993
and September 3, l993 as required by paragraph 16 of the Amended
Stipulation, and its failure to submit the Facilities Audit
within ten days of the court's Order of October 5, l993, as
required therein.
The applicable principles have been set forth in our
earlier cases. To prove civil contempt the court must find that
(1) a valid court order existed, (2) the defendant had knowledge
of the order, and (3) the defendant disobeyed the order. Roe v.
Operation Rescue, 919 F.2d 857, 871 (3d Cir. 1990). The validity
of the underlying order is not open to consideration. Inmates of
Allegheny County Jail, 874 F.2d at 152 (citing Pennhurst, 673
F.2d at 636-37). The resolution of ambiguities ought to favor
the party charged with contempt. United States on behalf of
I.R.S. v. Norton, 717 F.2d 767, 774 (3d Cir. 1983). A contempt
citation should not be granted if "there is ground to doubt the
wrongfulness of" the defendant's conduct. Quinter, 676 F.2d at
974 (quotation omitted).
Most of the City's arguments challenging the finding of
contempt go to its purported inability to comply. Our rejection
of those arguments in our consideration of the Order of October
5, l993 is equally applicable here. However, some of the City's
additional arguments must also be considered.
The City contends that the district court erred as a
matter of law when it ordered the production of preliminary
unreviewed drafts of the Facilities Audit because this material
was protected by the deliberative process privilege. Most of the
cases cited by the City do not arise under any possible common
law deliberate process privilege but instead arise under
Exemption 5 of the Freedom of Information Act, 5 U.S.C. §
552(b)(5), which has a specific exemption for "intra-agency
memorandums." See, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S.
132 (1975); State of Texas v. Interstate Commerce Comm'n, 889
F.2d 59, 60 (5th Cir. 1989); Lead Industries Ass'n v. OSHA, 610
F.2d 70, 80 (2d Cir. 1979).
Nonetheless, there may be some basis for the City's
objection to the direction in the Order of October 28, 1993 to
submit the Facilities Audit "in whatever form it presently
exists, whether as a preliminary outline, draft, text subject to
review, etc." We need not address the appropriateness of such a
direction because the district court did not find the City in
contempt of the Order of October 28. Instead, it was the City's
failure to comply with the provision of the Order of October 5,
l993 directing it to submit the Facilities Audit within ten days
that was one of the bases of the contempt Order of November 1,
l993. Because that order did not require the City to produce any
internal documents, the City has no applicable privilege defense,
even if such a defense could be raised at this stage.
In a somewhat related argument, the City asserts that
because a newly-elected Mayor may set new policies, the election
of Mayor Rendell who took office at the beginning of l992
entitled it to a grace period to redo the Facilities Audit and
the Ten-Year Plan. The City concedes, as it must, that the
election of a new administration does not relieve it of valid
obligations assumed by previous administrations. Just as the
City would not have been free to break its contract with a vendor
or other contractor because of the election of a new
administration, so too changes in administrative policy alone do
not permit the City to unilaterally default on its obligations to
the court and other litigants.
Moreover, in the case on which the City relies for its
"grace period" argument, Evans v. City of Chicago, 10 F.3d 474
(7th Cir. 1993) (in banc), cert. denied, 114 S. Ct. 1831 (1994),
the city defendants had brought a Fed.R.Civ.P. 60(b)(5) motion
seeking relief from a consent judgment on the ground, as set
forth in that rule, that "it is no longer equitable that the
judgment should have prospective application." The City has
never argued, here or in the district court, that it was no
longer equitable that it should produce a Facilities Audit and
Ten-Year Plan, documents upon which the Prison Planning Process
hinged. The cases are therefore not comparable. We see no
reason to reverse the finding of contempt contained in the
November 1, l993 order, because the record shows by clear and
convincing evidence that the City failed to comply with the
provisions of the prior orders cited.15
We turn therefore to the sanction imposed by the
district court for the contempt, i.e. dismissal of the Motion to
Modify. It is to this sanction that the City directs its most
vigorous argument and which the amici addressed in their briefs.
2. Dismissal of Motion to Modify as Contempt Sanction
In contrast to its failure to invoke Rule 60(b) as a
basis for extricating itself from the deadlines for filing
the Facilities Audit and the Ten-Year Plan, the City did use Rule
60(b)(4)-(6) as the basis for its January 1992 Motion to Modify
certain provisions of the 1986 Consent Decree and the 1991
Consent Decree. As set forth in the facts supra, this motion was
filed by the new City administration seeking to extricate itself
from the provisions establishing a maximum allowable prison
population, requiring the non-admission of detainees, and
requiring the release of detainees. The district court postponed
the hearing date on several occasions, and finally dismissed the
15
The City also argues that the district court penalized
it for appealing the Order of October 5, l993 imposing the
stipulated penalties by basing the contempt finding in the Order
of November l, l993 in part on the City's failure to pay the
stipulated penalties in response to the plaintiffs' demand
letters. We need not address this argument because the City's
failure to abide by the other two orders listed is clear. This
argument may be addressed on remand should the appropriate
sanction be considered once again.
Motion to Modify "as a sanction for . . . contempt." In its
explanatory opinion of November 17, l993, the district court
stated that the Motion to Modify "is dependent upon the very
documents the City has failed to submit," that the City
defendants "have refused and continue to refuse to pay the
penalties provided for by the Consent Decree and ordered by this
court, so there is no reason to believe monetary penalties would
be an appropriate sanction," and that "[d]ismissal of the Motion
to Modify is necessary to punish the City's defiance and prevent
prejudice to the plaintiff class." Addenda to City's Brief at A
-50 (emphasis added).
The City contends that the court's dismissal of
the Motion to Modify was an inappropriate sanction for a
civil contempt order. The City's argument finds support
in the Supreme Court's recent decision of International Union,
United Mine Workers v. Bagwell, 114 S. Ct. 2552 (1994), where the
Court reiterated the distinction between sanctions for civil and
criminal contempt. In that case, the Court identified two
purposes for civil contempt: one coercive and the other
compensatory. Id. at 2558 (citing United States v. United Mine
Workers, 330 U.S. 258, 303-04 (1947)).16 The Court cited as the
16
With respect to the "compensatory" purpose of civil
contempt, the Bagwell Court reaffirmed the "longstanding
authority" of judges "to enter broad compensatory awards for all
contempts through civil proceedings." Bagwell, 114 S. Ct. at
2563; see also Roe, 919 F.2d at 868 ("The purpose of civil
contempt is primarily remedial and is to benefit the
complainant.") (citing Hicks v. Feiock, 485 U.S. 624, 631 (1988)
paradigmatic civil contempt order one that allows the contemnor
to purge the contempt by committing an affirmative act and who
thus, as it were, "'carries the keys of his prison in his own
pocket.'" Bagwell, 114 S. Ct. at 2558 (quoting Gompers v. Bucks
Stove & Range Co., 221 U.S. 418, 442 (1911)); see also Penfield
Co. v. SEC, 330 U.S. 585, 590 (1947).
In holding that coercive sanctions must be capable
of being purged to be civil and to be within the court's inherent
authority, Bagwell, 114 S. Ct. at 2557 (observing that civil
fines like coercive imprisonment "exert a constant coercive
pressure, and once the jural command is obeyed, the future,
indefinite, daily fines are purged"), the Court reiterated a
long-standing requirement of civil contempt. See Penfield, 330
U.S. at 590 (citing In re Nevitt, 117 F. 448, 461 (8th Cir.
1902)); see also United Mine Workers, 330 U.S. at 304-05 (fixed
fines may be considered capable of being purged when imposed and
suspended pending future compliance); Shillitani v. United
States, 384 U.S. 364, 370-71 (1966) (civil contempt is imposed
for remedial purpose if court conditions release from
imprisonment upon contemnor's willingness to testify).
(..continued)
and Latrobe Steel Co. v. United Steelworkers, 545 F.2d 1336, 1343
(3d Cir. 1976)). Even when the sanctions coerce, they aid the
complainant by ensuring that the contemnor adheres to the court's
order. See Roe, 919 F.2d at 868; see also Bagwell, 114 S. Ct. at
2557.
To the extent that "a sanction operates whether or not
a party remains in violation of the court order, it obviously
does not coerce any compliance." In re Magwood, 785 F.2d 1077,
1082 (D.C. Cir. 1986); 11 Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure, § 2960, at 585 (1973). If the
contemnor cannot purge through an affirmative act, the sanction
has no coercive effect and exceeds the appropriate bounds of
civil contempt.
The Court explained that because "civil contempt
sanctions, or those penalties designed to compel future
compliance with a court order, are considered to be coercive and
avoidable through obedience," they may be imposed in an ordinary
civil proceeding upon notice and an opportunity to be heard, and
require neither a jury trial nor proof beyond a reasonable doubt.
Bagwell, 114 S. Ct. at 2557. Criminal contempt sanctions, by way
of contrast, are punitive and vindicate the authority of the
court by punishing past acts of disobedience. See id. at 2557-
58; see also Hicks, 485 U.S. at 631; Shillitani, 384 U.S. at 368-
70 & n.5); United Mine Workers, 330 U.S. at 302; Roe, 919 F.2d at
868. In such cases, a jury is required.
The Court in Bagwell was presented with the question of
the appropriateness of contempt fines of $52 million for
widespread and ongoing violations of a labor injunction, payable
to the general fisc. In reversing the state court judgment, the
Court held the fines were criminal in nature because petitioners
had no opportunity to purge the fines once they were imposed.
See Bagwell, 114 S. Ct. at 2562. Therefore, sanction was
improper because it had been imposed without the procedural
protections that accompany a finding of criminal contempt,
including foremost a jury trial.
Whether a contempt is "civil" or "criminal" depends
upon the "'character and purpose' of the sanction involved." Id.
at 2557 (quoting Gompers, 221 U.S. at 441). With these general
principles to inform us, we examine the City's challenge to the
appropriateness of the district court's dismissal of the City's
Motion to Modify as an inappropriate sanction for civil contempt.
Patently, that sanction was not compensatory. Nor was it
designed to have a coercive effect impelling the City to submit
at long last the tardy Facilities Audit and Ten-Year Plan,
because it had no provision explicitly permitting the City to
refile the motion once the documents were submitted. Although it
is arguable that because the Order did not specify that the
dismissal was with prejudice the City may have refiled the motion
after it complied with the submission of the documents, and thus
we should regard it as a coercive civil contempt order, that
argument is belied by the district court's own language. It
stated that "the dismissal of the Motion to Modify is based upon
a finding of contempt," and that it was dismissing the motion "to
punish the City[ ]." We see no reason not to take the court at
its own words.
We could not sustain the dismissal of the Motion to
Modify as a sanction for criminal contempt, because it is evident
that the requisite procedural protections, in particular a jury
trial, were not accorded. Like the fines at issue in Bagwell,
the conduct cannot be termed to be petty contempt, which like
other petty criminal offenses may be tried without a jury. 114
S. Ct. at 2562 n.5. "Under such circumstances, disinterested
factfinding and even-handed adjudication were essential, and
petitioners were entitled to a criminal jury trial." Id. at
2562. Thus, although we see no reason to relieve the City of the
court's finding that it was in contempt, we cannot uphold the
court's imposition of the dismissal of the Motion to Modify as a
sanction for that civil contempt.
3. Dismissal of Motion to Modify as a Discovery Sanction
Fed. R. Civ. P. 37(b)(2) authorizes a district court
either in lieu of or in addition to one of the listed sanctions,
including striking pleadings, to enter an order treating as
contempt of court the failure of the party to obey any court
order.17 In Bagwell, the Court also recognized that "[c]ourts
17
The original Notes of the Advisory committee to the 1937
Adoption of Rule 37 state:
The provisions of this rule authorizing
orders establishing facts or excluding
evidence or striking pleadings, or
authorizing judgments of dismissal or
default, for refusal to answer questions or
permit inspection or otherwise make
discovery, are in accord with Hammond Packing
Co. v. Arkansas, l909, 29 S. Ct. 370, 212 U.S.
322, 53 L. Ed. 530, 15 Ann.Cas. 645, which
traditionally have broad authority through means other than
contempt -- such as by striking pleadings, assessing costs,
excluding evidence, and entering default judgment -- to penalize
a party's failure to comply with the rules of conduct governing
the litigation process." 114 S. Ct. at 2560 (emphasis added).
In entering its order dismissing the Motion to Modify,
the district court also stated it was informed by the standard
stemming from Poulis v. State Farm Fire & Casualty Co., 747 F.2d
863 (3d Cir. 1984), for dismissing an entire case as sanction.18
(..continued)
distinguishes between the justifiable use of
such measures as a means of compelling the
production of evidence, and their
unjustifiable use, as in Hovey v. Elliott,
1897, 17 S. Ct. 841, 167 U.S. 409, 42 L. Ed.
215, for the mere purpose of punishing for
contempt.
Fed. R. Civ. P. 37 advisory committee's note (1937).
18
In Poulis we identified six factors to consider in
levying the sanction of dismissal of an action for failure to
obey discovery schedules, failure to prosecute, or to comply with
other procedural rules: (1) the extent of the party's personal
responsibility; (2) the prejudice to the adversary caused by the
failure to meet scheduling orders and to respond to discovery;
(3) a history of dilatoriness; (4) whether the conduct of the
party or the attorney was willful or in bad faith; (5) the
effectiveness of sanctions other than dismissal, which entails an
analysis of alternative sanctions; and (6) the meritoriousness of
the claim or defense. 747 F.2d at 868. The Poulis court
emphasized that dismissals with prejudice or defaults are drastic
sanctions, termed "extreme" by the Supreme Court, see National
Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639,
643 (1975), and are to be reserved for cases comparable to the
"flagrant bad faith" and "callous disregard" exhibited in
It is therefore incumbent upon us to consider whether dismissal
of the Motion to Modify was within the district court's
discretion as a sanction for failure to comply with discovery.
We have affirmed dismissal of an action as a sanction
for extreme abuses of discovery or other procedural rules or for
failure to prosecute. See, e.g., Hoxworth v. Blinder Robinson &
Co., Inc., 980 F.2d 912 (3d Cir. 1992) (default judgment under
Rule 55 for failure to defend suit); Mindek v. Rigatti, 964 F.2d
1369, 1373-75 (3d Cir. 1992) (dismissal appropriate under Rules
16, 37 and 41(b) for persistent failure to file a pretrial
statement); Curtis T. Bedwell & Sons, Inc. v. International
Fidelity Ins. Co., 843 F.2d 683, 691-96 (3d Cir. 1988) (dismissal
as a Rule 37 sanction for failing to comply with discovery orders
over extended period); Marshall v. Sielaff, 492 F.2d 917, 918 (3d
Cir. 1974) (dismissal for failure to prosecute under Rule 41(b)
and inherent power of the court).
The City argues that implicit in Poulis is the
requirement that there be a relationship between the party's
default and the pleading being dismissed. Such a requirement was
referred to in Insurance Corp. of Ireland v. Compagnie Des
Bauxites, 456 U.S. 694 (1982). Although the Court held that the
district court in that case had not abused its discretion in
treating personal jurisdiction over defendants as established,
(..continued)
National Hockey League. See National Hockey League, 427 U.S. at
643.
absent proof to the contrary, because the defendants had failed
repeatedly to comply with discovery orders on that issue, the
Court stated that a district court's broad discretion to impose
discovery sanctions pursuant to Rule 37(b)(2) is limited by two
standards:
First, any sanction must be "just"; second, the
sanction must be specifically related to the
particular "claim" which was at issue in the
order to provide discovery.
Id. at 707 (emphasis added). The Court noted that the latter
requirement embodies the due process limits that it had held
seven decades earlier apply to striking pleadings for failure to
comply with a discovery order. Id. (citing Hammond Packing Co.
v. Arkansas, 212 U.S. 322, 350-51 (1909)).19
We have also recently employed the "related"
requirement in evaluating sanctions imposed pursuant to Tax Court
Rule 104(c). See Estate of Spear v. Comm'r of Internal Revenue,
41 F.3d 103, 109-10 (3d Cir. 1994). Even more important, in
Inmates of the Allegheny County Jail v. Wecht, 754 F.2d 120 (3d
Cir. 1985), another case in which the local government
persistently failed to comply with maximum population limits for
19
In an older case, Hovey v. Elliott, 167 U.S. 409 (1897),
the Court held that an answer to a complaint may not be struck as
a sanction for contempt. In its most recent discussion of this
case in Insurance Corp., the Court reconciled the discovery
sanctions permissible under the Federal Rules of Civil Procedure
with the due process requirement of Hovey, stating that when Rule
37(b)(2) is properly applied, it is consistent with due process.
Insurance Corp., 456 U.S. at 706.
inmates at a county jail, we overturned the court's imposition of
a sanction of $5,000 for each prisoner who had to be released to
comply with that maximum, because, inter alia, "[t]here is no
discernable connection between the sanction and any of the
remedial features of the injunction in place." Id. at 129. We
held that the direction to pay $5,000 per released inmate "lacked
a sufficiently specific nexus with the underlying violations and
their correction so as to amount to an abuse of discretion." Id.
at 130.
Thus, absent the type of flagrant discovery violation
that we have held supports dismissal of an entire suit or
imposition of default judgment, we agree with the City that some
nexus must be found between the district court's dismissal of the
Motion to Modify and the City's failure to timely submit the
Facilities Audit and the Ten-Year Plan.
In order to establish such a nexus in this case, the
district court found that "the Motion to Modify is dependent upon
the very documents the City has failed to submit," Addenda to
City's Brief at A-50, and that the pendency of the motion "has
permitted the City to rationalize its noncompliance with certain
aspects of the Consent Decree on the hopeful assumption that a
modification was possible and forthcoming." Id. at A-52. We
find the purported relationship tenuous. The Motion to Modify
did not seek to relieve the City of the obligation to undertake
the Prison Planning Process which was the plan to which the
Facilities Audit and the Ten-Year Plan were directed. Thus it is
difficult to see how noncompliance with the deadlines could have
relieved the City of its obligations under the Prison Planning
Process.
Nor are we convinced that there were no other available
sanctions more specifically related to the Motion to Modify. The
district court could have continued to delay the hearing on the
Motion to Modify until submission of the documents, which would
have obviated any advantage to the City from its delay in
submitting the documents and would have relieved the prejudice to
plaintiffs, if any, referred to by the district court if they had
been required to proceed with the hearing on the Motion to Modify
without access to the information relied upon by the City in its
proposed findings of fact. The court also could have precluded
the City from relying upon the information prepared by the City's
consultants in the draft Audit as the basis for its proposed
findings in support of the Motion to Modify. Finally, the court
could have continued to assess the stipulated monetary penalty
for each day of noncompliance. Although the court believed that
that sanction was not effective because the City had failed to
pay in light of its appeal of the October 5 Order, that penalty
continued to accumulate and accrue.
Thus, we conclude that because of the absence of a more
decided nexus between the delay in submission of the documents
and the Motion to Modify, we cannot affirm dismissal of the
Motion to Modify as a sanction for the City's delay and will thus
reverse that portion of the Order of November 1, l993 and remand
that issue to the district court. In doing so, we note that
throughout our review of the extensive record in these and the
related appeals, we have been impressed with the dedication and
perseverance of the district judge notwithstanding the City's
repeated evasion of responsibilities that it voluntarily
fashioned and undertook more than eight years ago. The district
judge's frustration with the City's repeated failure to submit
the two documents when promised was justifiable.
It is precisely because of the long period of time
this matter has proceeded and the important interests that are at
stake that the the district court may wish to consider the merits
of the Motion to Modify the Consent Decrees. We have been
instructed that decrees of this sort are "not intended to operate
in perpetuity." Board of Educ. v. Dowell, 498 U.S. 237, 248
(1991). In Rufo v. Inmates of Suffolk County Jail, 112 S. Ct.
748 (1992), the Court stated that because consent decrees in
institutional reform litigation often remain in place for
extended periods of time, "the likelihood of significant changes
occurring during the life of the decree is increased." Id. at
758 (citing with approval Philadelphia Welfare Rights Org., 602
F.2d at 1119-21).
In this case, the brief filed by the United States as
amicus curiae on appeal makes arguments that we believe merit
consideration. It states, for example, not only that the United
States believes "that a local jurisdiction subject to a consent
decree governing its prison system has a duty, enforceable by
appropriate means including contempt sanctions, to respect the
terms of that decree," but also that "if the local jurisdiction
makes a sufficient showing that the decree is having an
unforeseen, adverse impact on law enforcement and public safety,
the court that entered the decree has a duty to consider
appropriate modifications." Brief of United States at 3. The
United States notes that the City's Motion to Modify alleges that
the decrees are having an unforeseen, adverse impact on law
enforcement and public safety. We agree that these are issues of
public importance that deserve consideration by the district
court.
The City's Motion also would have offered the district
court an opportunity to assess its role in supervising the
methods used by the City to comply with its obligation to reduce
overcrowding in the Philadelphia prison system. See Milliken v.
Bradley, 433 U.S. 267, 282 (1977) (referring to "inherent
limitation upon federal judicial authority" in fashioning decrees
designed to correct constitutional violations).
Finally, we note that had the district court considered
the merits of the Motion to Modify, some of the issues which have
arisen as a result of the parties' differing interpretations as
to the release mechanism which is the subject of our opinion in
Harris VII, being filed contemporaneously with this opinion,
could have been avoided.
We offer no comment on the merits of the Motion to
Modify but merely note that, in light of the passage of time and
the possibility of relevant changes, a reexamination does not
seem inappropriate. Although the district court stated in its
November 17 Memorandum Opinion that it was not sure that the City
could "prove changed circumstances," we do not regard that as the
court's final determination on the merits of the Motion to
Modify. Our prior ruling that the meritoriousness of the claim,
one of the Poulis factors, "must be evaluated on the basis of the
facial validity of the pleadings, and not on summary judgment
standards" in considering dismissal as a sanction, Scarborough v.
Eubanks, 747 F.2d 871, 875 (3d Cir. 1984), seems equally
applicable here.
We do not suggest that upon remand the district court
is obliged to hold an immediate hearing. Indeed, on the state of
this record the purpose of such a hearing is unclear, in light of
the pendency before the district court of a more recent Motion to
Modify filed by the City. In response to our inquiry as to
whether the court's consideration of the later Motion makes moot
our consideration of this part of the appeal, all parties assured
us that it does not. We have no reason to hold otherwise,
particularly in light of the possibility that the dismissal of
the Motion to Modify, should it remain intact, might influence
subsequent proceedings.
For these reasons, we will reverse the portion of the
Order of November 1, l993 dismissing the Motion to Modify as a
sanction and remand for further proceedings. We do not preclude
the district court from imposing a different appropriate
sanction.
IV.
CONCLUSION
To recapitulate in No. 93-1997, we will affirm the
order of the district court of October 5, 1993 assessing $584,000
in stipulated penalties against the City of Philadelphia, and do
not reach the question as to any additional penalties that may
have accrued to this time. We will dismiss as moot the appeal in
No. 93-2116, from the order of October 28, 1993 directing
production of the Facilities Audit. Finally, in No. 93-2117 we
will affirm so much of the order of November 1, 1993 as declared
the City in contempt but will reverse that portion of the order
that dismissed the City's Motion to Modify as a sanction. We
will remand for such further proceedings as are consistent with
this opinion.
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