United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 5, 2009 Decided April 9, 2010
No. 08-7100
OSCAR SALAZAR, BY HIS PARENTS AND NEXT FRIENDS,
ADELA AND OSCAR SALAZAR, ET AL.,
APPELLEES
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:93-cv-00452)
Richard S. Love, Senior Assistant Attorney General, Office
of the Attorney General for the District of Columbia, argued the
cause for appellants. With him on the briefs were Peter J.
Nickles, Attorney General, Todd S. Kim, Solicitor General, and
Donna M. Murasky, Deputy Solicitor General. Robert C.
Utiger, Senior Assistant Attorney General, entered an
appearance.
Kathleen L. Millian argued the cause for appellees. With
her on the brief were Bruce J. Terris and Jane M. Liu.
Before: GARLAND and GRIFFITH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
2
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: In 1993, appellee
Medicaid recipients brought suit against the District of
Columbia (“the District”) alleging various violations of Title
XIX of the Social Security Act (“SSA”), 79 Stat. 343, as
amended, 42 U.S.C. § 1396 et seq. (2000 ed. and Supp. III), and
its accompanying regulations. In October 1996, the District
Court held that the District was liable under 42 U.S.C. § 1983
for violating federal Medicaid requirements. Salazar v. District
of Columbia, 954 F. Supp. 278 (D.D.C. 1996). While judgment
was pending on an appeal by the District, the parties negotiated
a comprehensive settlement agreement setting forth detailed
requirements for the District’s operation of its Medicaid
program in compliance with the law. The District Court adopted
the agreement with an order issued on January 25, 1999.
Salazar v. District of Columbia, Civ. Action No. 93-452, Order
Modifying the Amended Remedial Order of May 6, 1997 and
Vacating the Order of March 27, 1997 at 1-49 (D.D.C. Jan. 25,
1999) (“Settlement Order”), reprinted in Joint Appendix
(“J.A.”) 264-312.
On March 19, 2003, after repeated failures by the District
to comply with various requirements and deadlines under the
Settlement Order and related court orders, appellees moved to
establish a prospective, per diem penalty schedule of fines for
future violations. The District Court granted appellees’ motion
on July 10, 2006. Salazar v. District of Columbia, Civ. Action
No. 93-452, order at 1-3, slip op. at 1-4 (D.D.C. Jul. 7, 2006)
(“2006 Order”), reprinted in J.A. 484-90. The 2006 Order
directed appellees to file a praecipe with the District Court every
fiscal quarter, documenting any penalties allegedly accrued
during that three-month period.
Between 2006 and 2008, appellees filed five quarterly
praecipes documenting penalties allegedly accrued by the
3
District. Each praecipe was opposed by the District. On August
13, 2008, the District Court ruled on all five outstanding
praecipes and issued an order assessing $931,050 in penalties
against the District. Salazar v. District of Columbia, Civ. Action
No. 93-452, order at 1-2, slip op. at 1-15 (D.D.C. Aug. 13, 2008)
(“2008 Order”), reprinted in J.A. 618-35. The 2008 Order
addressed each of the praecipes separately. With respect to the
fourth praecipe, covering the third quarter of 2007, the District
Court, inter alia, assessed $370,500 in penalties for the
District’s alleged failure to “negotiate in good faith,” as required
by ¶ 80 of the Settlement Order.
On August 27, 2008, the District filed a motion for partial
reconsideration. The sole argument raised in that motion was
that the sanctions imposed for the District’s failure to timely
provide blood lead corrective action plans (“CAPs”) should be
vacated because the relevant underlying order had not been
violated. This motion was denied. On appeal, the District has
raised numerous issues that were never raised with the District
Court in the first instance, including, inter alia, claims that the
District Court (1) erred in imposing criminal contempt sanctions
in a civil proceeding and (2) erred in imposing excessive
penalties based on a misapplication of ¶ 80 of the Settlement
Order. Appellees, in turn, argue that this court lacks jurisdiction
to hear this appeal.
First, we hold that the 2008 Order is final and appealable
under 28 U.S.C. § 1291. We also hold that the 2006 Order is
reviewable to the extent that it is “‘inextricably bound up with’”
the 2008 Order. See Hartman v. Duffey, 19 F.3d 1459, 1464
(D.C. Cir. 1994) (quoting Wagner v. Taylor, 836 F.2d 578, 585
(D.C. Cir. 1987)).
Second, we affirm the District Court’s judgment on all but
one issue. The District failed to raise and preserve most of the
claims that it now raises on appeal. “[C]ourts of appeals have
discretion to address issues raised for the first time on appeal,”
4
but exercise it “only in exceptional circumstances,” Flynn v.
Comm’r, 269 F.3d 1064, 1069 (D.C. Cir. 2001), or when the
trial court has committed “plain error,” United States v. Olano,
507 U.S. 725, 736-37 (1993) (citing Connor v. Finch, 431 U.S.
407, 421 n.19 (1977) (civil appeal)). Because we find neither
exceptional circumstances nor plain error, we hold that the
District has forfeited most of the issues that it has raised with
this court. The one exception relates to the question regarding
the misapplication of ¶ 80. On this issue, we hold that the
District Court committed error in subjecting the District to a
126-day contempt fine for its failure to negotiate with appellees
under ¶ 80 of the Settlement Order. Although the 2006 Order
states that the “deadlines” enforceable through per diem fines
“include the negotiation requirement in paragraph 80,” it does
not say that per diem fines can be imposed for a failure to
negotiate beyond, rather than within, the 10-day window
specified in ¶ 80. The District Court erred in finding otherwise;
the error affected the District’s substantial rights and offended
the fairness and integrity of the proceedings under review. It
also constituted a miscarriage of justice.
For the reasons outlined below, we affirm in part and
reverse in part. The case will be remanded to the District Court
for further proceedings consistent with this opinion.
I. BACKGROUND
The Medicaid program entails joint federal and state
funding of medical care for individuals who cannot afford to pay
their own medical costs. The program was launched in 1965
with the enactment of Title XIX of the SSA. See Ark. Dep’t of
Health & Human Servs. v. Ahlborn, 547 U.S. 268, 275 (2006).
“States are not required to participate in Medicaid, but all of
them do. The program is a cooperative one; the Federal
Government pays [a percentage] of the costs the State incurs for
patient care, and, in return, the State pays its portion of the costs
and complies with certain statutory requirements for making
5
eligibility determinations, collecting and maintaining
information, and administering the program.” Id. (footnote
omitted); see also 42 U.S.C. § 1396a; 42 C.F.R. § 430.10
(requiring participating states to act “in conformity with the
specific requirements” of the federal Medicaid statute and
applicable federal regulations). The District participates in the
Medicaid program on the same terms as the states, because the
statute “treats the District . . . as a State.” See D.C. Hosp. Ass’n
v. District of Columbia, 224 F.3d 776, 777 (D.C. Cir. 2000); 42
U.S.C. § 1396d(b) (Supp. III 1997).
In 1993, a number of Medicaid recipients brought suit under
§ 1983 against the District, alleging violations of Title XIX and
its accompanying regulations. After the District Court found the
District liable, Salazar v. District of Columbia, 954 F. Supp. at
334, an appeal was taken. While the appeal was pending, the
parties reached a settlement which was adopted by the District
Court in the 1999 Settlement Order. Over time, additional
orders imposing additional requirements on the District were
added to the Settlement Order.
In March 2003, after the District had repeatedly violated the
terms of the Settlement Order, appellees filed a motion with the
District Court for the establishment of a per diem penalty
schedule of fines for future violations. The motion was granted
on July 10, 2006, with the court’s issuance of the 2006 Order.
This order set forth a progressive, escalating fine schedule for
missed deadlines that compounds the total penalty for
noncompliance based on the number of days elapsed. See 2006
Order, order at 2, J.A. 485. The 2006 Order also directed
appellees to file a praecipe with the District Court every fiscal
quarter, documenting any penalties allegedly accrued by the
District during that three-month period. The District could file
an opposition and appellees could file a reply. The District
Court indicated that it would consider the praecipes and any
6
mitigating circumstances, and then decide whether or not to
impose fines.
Between 2006 and 2008, appellees filed five quarterly
praecipes documenting the penalties allegedly accrued by the
District. Each was opposed by the District. On August 13,
2008, the District Court ruled on all five outstanding praecipes
at the same time and assessed $931,050 in penalties against the
District. See 2008 Order, slip op. at 1-15, J.A. 621-35.
In the first praecipe, covering the third quarter of 2006, the
District Court assessed $1,500 in penalties for the District’s
failure to provide discovery until nine days after the required
deadline. In the second praecipe, covering the fourth quarter of
2006, the District Court assessed $39,500 in penalties for the
District’s failure to distribute a dental brochure by a deadline set
forth in a 2004 order; the court also assessed a penalty of $300
for the District’s failure to seek a timely extension of time. In
the third praecipe, covering the second quarter of 2007, the
District Court (1) assessed $13,500 in penalties for the District’s
failure to timely provide blood level CAPs as required under a
2003 order; (2) assessed a penalty of $10,000 for the District’s
failure to submit a Provider Education Report; and (3) denied
appellees’ request to assess $110,500 in penalties for the
District’s alleged failure to complete an Annual Oral Health
Summary Report, finding that the requested sanction was
excessive.
In the fourth praecipe, covering the third quarter of 2007,
the District Court (1) assessed $152,000 in penalties for the
District’s continuing failure to provide blood lead level CAPs
until 126 days after the required deadline; (2) assessed $290,500
in penalties for the District’s continuing failure to provide a
required Provider Education Report until 112 days after the
deadline; (3) assessed $370,500 in penalties for the District’s
alleged breach of ¶ 80 of the Settlement Order when it delayed
126 days before commencing to “negotiate in good faith” over
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an enforcement motion proposed by appellees; and (4) denied
appellees’ request to assess $265,000 in penalties for the
District’s alleged continuing failure to provide a complete
Annual Oral Health Summary Report. Finally, in the fifth
praecipe, covering the first quarter of 2008, the District Court
(1) assessed $11,500 in penalties for the District’s failure to
timely submit a Dental CAP as required by a 2004 order; (2)
assessed $2,250 in penalties for the District’s failure to timely
comply with discovery; (3) assessed $39,500 in penalties for the
District’s failure to timely provide annual notifications to
providers on reimbursement procedures; (4) denied appellees’
proposed penalty for the District’s allegedly deficient Annual
Oral Health Survey Report; and (5) denied appellees’ proposed
penalty for the District’s alleged failure to respond to certain
discovery requests.
On August 27, 2008, the District filed a motion for partial
reconsideration. See Def.’s Mot. for Partial Recons. of the
Court’s Order of Aug. 13, 2008 (Aug. 27, 2008), reprinted in
J.A. 636-42. The sole argument raised by the District in that
motion was that the penalties imposed for its alleged failure to
timely provide blood level CAPs should be vacated because the
relevant underlying order had not been violated. The District
did not contend that the penalties imposed by the District Court
improperly constituted sanctions for criminal contempt, that any
aspect of the 2008 Order was ambiguous or otherwise unclear,
or that the District Court had improperly failed to conduct an
evidentiary hearing. Id. at J.A. 636. The District’s motion was
denied. Salazar v. District of Columbia, Civ. Action No. 93-
452, Minute Entry Order (D.D.C. Jan. 29, 2009), reprinted in
J.A. 643-44.
On appeal to this court, the District argues that the District
Court committed a variety of errors, including imposing
criminal contempt sanctions in a civil proceeding, failing to
afford the District an evidentiary hearing prior to the imposition
8
of sanctions for contempt, generally imposing excessive fines
based a mechanical application of the 2006 Order, and imposing
an enormously excessive fine based on a misapplication of ¶ 80
of the Settlement Order. Appellees, in turn, contend that this
court lacks jurisdiction to hear this appeal.
II. ANALYSIS
A. Jurisdiction
Appellees contest this court’s jurisdiction to hear this
appeal. Appellees contend that the 2008 Order is barred from
review because it is not final under 28 U.S.C. § 1291; and they
argue that appeal of the 2006 Order is untimely. Neither
contention has merit.
The 2008 Order is final and hence appealable because the
District Court concluded that specific, unavoidable penalties
“have accrued and are hereby assessed” against the District. See
2008 Order, order at 2, J.A. 620. It is immaterial that the 2008
Order did not specify how the penalties were to be paid or
indicate the ultimate disposition of the funds. Even a
“conditional sanction” imposed for failure to comply with a
District Court order can be final and appealable. Armstrong
v. Exec. Office of the President, Office of Admin., 1 F.3d 1274,
1289 (D.C. Cir. 1993) (internal quotation marks omitted).
Therefore, there hardly can be any doubt that the “accrued” and
“assessed” penalties imposed by the 2008 Order made the
District Court’s judgment final for purposes of review under
§ 1291.
This court also has jurisdiction to review the 2006 Order to
the extent that it is “‘inextricably bound up with’” the 2008
Order. See Hartman, 19 F.3d at 1464 (quoting Wagner, 836
F.2d at 585). It does not matter whether the 2006 Order,
without more, was final and appealable under § 1291. See
Hartman, 19 F.3d at 1463. So long as the 2008 Order is final,
this court’s “jurisdiction over that final decision extends as well
9
to the interlocutory rulings that preceded it.” Ciralsky v. CIA,
355 F.3d 661, 668 (D.C. Cir. 2004).
B. Standard of Review
“To preserve a claim of error on appeal, a party typically
must raise the issue before the trial court. . . . ‘No procedural
principle is more familiar . . . than that a . . . right may be
forfeited in criminal as well as civil cases by the failure to make
timely assertion of the right before a tribunal having jurisdiction
to determine it.’” In re Sealed Case, 552 F.3d 841, 851-52
(D.C. Cir. 2009) (quoting Yakus v. United States, 321 U.S. 414,
444 (1944)). None of the principal arguments advanced by the
District in this case – that the District Court improperly imposed
criminal contempt penalties in a civil proceeding and improperly
denied the District an evidentiary hearing prior to issuing
contempt sanctions; that the fines imposed were mechanical and
excessive; or that the trial court misapplied ¶ 80 of the
Settlement Order – was raised below. Generally, an argument
not made in the trial court is forfeited and will not be considered
absent “exceptional circumstances.” Nemariam v. Fed.
Democratic Republic of Ethiopia, 491 F.3d 470, 483 (D.C. Cir.
2007) (internal quotation marks and citations omitted).
“[C]ourts of appeals have discretion to address issues raised for
the first time on appeal,” but exercise such discretion “only in
exceptional circumstances, as, for example, in cases involving
uncertainty in the law; novel, important, and recurring questions
of federal law; intervening change in the law; and extraordinary
situations with the potential for miscarriages of justice.” Flynn,
269 F.3d at 1069.
Under the Federal Rules of Criminal Procedure, courts may
take notice of “plain error[s]” not preserved below in criminal
cases. See FED. R. CRIM. P. 52(b). Many courts have indicated
that plain error review is available in situations involving
unpreserved claims of error affecting substantial rights in civil
cases. See Olano, 507 U.S. at 736 (citing Connor, 431 U.S. at
10
421 n.19 (1977)); Brickwood Contractors, Inc. v. Datanet
Eng’g, Inc., 369 F.3d 385, 396-97 (4th Cir. 2004); Douglass v.
United Servs. Auto. Ass’n, 79 F.3d 1415, 1424 (5th Cir. 1996);
see generally HARRY T. EDWARDS & LINDA A. ELLIOTT,
FEDERAL STANDARDS OF REVIEW 91-92 (2007). Olano allows
reversal for plain error where there is (1) “error” that is (2)
“plain,” (3) “affects substantial rights” of the parties, and (4)
“seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Olano, 507 U.S. at 732 (internal
quotation marks and citations omitted). “An error ‘affec[ts]
substantial rights’ if it is ‘prejudicial’ or ‘affected the outcome
of the district court proceedings.’” United States v. Perry, 479
F.3d 885, 892 (D.C. Cir. 2007) (quoting Olano, 507 U.S. at
734).
“Exceptional circumstances” and “plain error” review may
be related in certain instances. See, e.g., Long v. Howard Univ.,
550 F.3d 21, 25-26 (D.C. Cir. 2008). We have yet to determine
whether the two inquiries are coterminous. To the extent that
plain error review applies, however, the court must “‘take[ ]
account of the differences’ between civil litigation and criminal
prosecution.” Muldrow ex rel. Estate of Muldrow v. Re-Direct,
Inc., 493 F.3d 160, 168 & n.5 (D.C. Cir. 2007) (quoting FED. R.
CIV. P. 51 advisory committee’s notes to 2003 amendments); see
also Long, 550 F.3d at 26 & n.*.
With respect to all but one of the District’s claims, we find
that the issues raised are subject to neither exceptional
circumstances nor plain error review. As explained below, the
one exception is the error the District Court committed in its
misapplication of ¶ 80 of the Settlement Order.
C. Criminal Versus Civil Contempt
The District claims that the trial court committed reversible
error by improperly imposing criminal sanctions in a civil
proceeding. We disagree. “At a minimum, a court of appeals
11
cannot correct an error” under plain error review “unless the
error is clear under current law.” Olano, 507 U.S. at 734. A
number of the fines imposed by the District Court were based on
a per diem calculation for contumacious conduct that had ceased
at the time of the 2008 Order. Under existing case law, it is not
entirely clear whether such fines constitute sanctions for civil or
criminal contempt.
The Supreme Court has described civil contempt sanctions
as “remedial” and criminal contempt sanctions as “punitive.”
Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S.
821, 827-28 (1994) (internal quotation marks and citations
omitted). The Court acknowledged the difficulty of drawing a
bright line, however, since “‘[w]hen a court imposes fines and
punishments on a contemnor, it is not only vindicating its legal
authority to enter the initial court order, but it also is seeking to
give effect to the law’s purpose of modifying the contemnor’s
behavior to conform to the terms required in the order.’” Id. at
828 (quoting Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 635
(1988)). As a result, “[m]ost contempt sanctions, like most
criminal punishments, to some extent punish a prior offense as
well as coerce an offender’s future obedience.” Id.
Bagwell describes a civil contempt sanction as one with
respect to which “the contemnor is able to purge the contempt
. . . by committing an affirmative act.” Id. And the Court
describes a punitive, criminal contempt sanction as one that is
“imposed retrospectively for a completed act of disobedience
. . . such that the contemnor cannot avoid or abbreviate” the
penalty through “later compliance.” Id. at 828-29 (internal
quotation marks and citation omitted). The Bagwell Court then
says that “per diem fine[s] imposed for each day a contemnor
fails to comply with an affirmative court order” are sanctions for
civil contempt, whereas “a flat, unconditional fine” with respect
to which “the contemnor has no subsequent opportunity to
reduce or avoid the fine through compliance” is a sanction for
12
criminal contempt. Id. at 829 (internal quotation marks and
citations omitted).
Under the disputed 2008 Order, the District Court imposed
fines in a number of instances for contumacious conduct that
had ceased at the time the contempt order issued. However, at
least in this case, the fact that the contumacious conduct had
ceased when the sanctions were issued would seem to be
irrelevant to the determination as to whether the sanctions were
civil or criminal. Under Bagwell, it would appear that the
disputed “per diem fines” were civil contempt sanctions
imposed in accordance with the schedule of fines under the
2006 Order for each day that the District violated applicable
terms of the Settlement Order. In other words, beginning in
2006, the District had fair notice and an opportunity to purge its
ongoing contumacious conduct and avoid penalties by acting in
compliance with the Settlement Order. The 2006 Order did not
penalize the District for the contumacious conduct that had
occurred before that order issued. Rather, it put the District on
notice that it would be fined for any such conduct that occurred
after the issuance of the 2006 Order. When the District
continued to violate the Settlement Order after the issuance of
the 2006 Order, it was made to account for its wrongdoing with
the issuance of the 2008 Order. It did not matter that some of
the violations finally ceased before 2008. The penalties imposed
by the 2008 Order could have been avoided only if the District
had fully complied with the Settlement Order following the
District Court’s issuance of the 2006 Order.
A less likely, but not utterly implausible, construction of
Bagwell is to view the sanctions imposed by the 2008 Order as
“flat, unconditional fines,” and thus criminal sanctions, for past
wrongs committed by the District. In other words, under this
view, the District could claim that it should not have been
sanctioned, save through criminal contempt, for any
contumacious conduct that occurred after the issuance of the
13
2006 Order but ceased before the trial court assessed the
praecipes and issued the 2008 Order. This position finds no real
support in the law of this circuit. Indeed, the case law goes the
other way.
A good example is NOW v. Operation Rescue, 816 F. Supp.
729, 736 (D.D.C. 1993). In that case, the District Court ordered
a party to appear in court on January 24, 1992, to show cause
why he should not be held in contempt for violating an earlier
injunction of the court. The party had actual notice of the trial
court’s order, yet he failed to comply. At a hearing held on
March 16, 1993, at which the party again failed to appear, the
trial court fined the appellant “the sum of $41,600, being
$100.00 per day for each day between January 24, 1992 and
March 16, 1993, without prejudice to future motions for
judgment in amounts equal to $100.00 per day each day which
passes until [the party] enters an appearance in the matter.” Id.
at 736. This order was affirmed on appeal.
In this court’s review of the trial court’s contempt order in
Operation Rescue, we first held that Bagwell “did not call into
question the traditional classification of some categories of
contempt sanctions – compensatory fines, coercive
imprisonment, and per diem fines to coerce compliance with
affirmative court orders – as civil in nature.” Nat’l Org. for
Women v. Operation Rescue, 37 F.3d 646 , 659 (D.C. Cir. 1994).
We then held that the disputed “per diem fines totalling $41,600
($100 per day of violation) . . . for failure to appear in court in
violation of the court’s affirmative order to do so . . . are clearly
civil in nature under traditional classifications that remain
unchallenged by the Bagwell decision.” Id. at 660. It did not
matter to the court that the fines imposed applied to conduct that
had already occurred and whose amount could no longer be
reduced through compliance. The decision in Operation Rescue
surely supports the action of the District Court in this case.
14
This court’s later decision in Evans v. Williams, 206 F.3d
1292 (D.C. Cir. 2000), adds some wrinkles to the analysis, but
it is not fundamentally at odds with the decision in Operation
Rescue with respect to the issue in dispute in this case. In
Evans, the District of Columbia appealed from an order of the
District Court imposing contempt fines of $5,096,340 for its
failure to comply with a consent decree addressing a panoply of
constitutional violations resulting from poor conditions at a
mental health facility. The District argued that “the fines were
indisputably not compensatory (a classic aspect of a civil fine),
for they were . . . not at all calibrated to the damage caused by
the District’s conduct. Moreover, the fines, according to the
District, were fixed and determinate; there was no opportunity
to escape their consequences by altering behavior, i.e., to purge
them once they were imposed. In other words, [in the view of
the District], the fines were designed primarily to punish past
acts rather than coerce future conduct and therefore should be
thought punitive.” Id. at 1295. The appellees, on the other
hand, argued “that the fines should be seen as coercive and
therefore civil in character because the schedule of prospective
fines was announced in advance.” Id. In other words, according
to the appellees, the District “had the capacity to avoid the fines,
so to speak to purge itself of contempt, by altering its conduct
prior to the time the fines accrued.” Id.
In addressing the issues before it, the Evans court described
the differences between civil and criminal contempt, as follows:
Traditionally, whether a contempt is civil or criminal has
depended on the “character and purpose” of the sanction.
A sanction is considered civil if it is “remedial, and for the
benefit of the complainant. But if it is for criminal
contempt the sentence is punitive, to vindicate the authority
of the court.” Gompers v. Buck’s Stove & Range Co., 221
U.S. 418, 441 (1911). There also has been a traditional
distinction between mandatory and prohibitory orders. The
15
“paradigmatic coercive, civil contempt sanction . . .
involves confining a contemnor indefinitely until he
complies with an affirmative command.” International
Union, United Mine Workers of America v. Bagwell, 512
U.S. 821, 828 (1994). On the other hand, a fixed term of
imprisonment imposed retroactively to punish an act of
disobedience is criminal. This distinction has been
extended to fines, so that “a per diem fine imposed for each
day a contemnor fails to comply with an affirmative court
order” is civil, but an unconditional fine imposed “after a
finding of contempt is criminal if the contemnor has no
subsequent opportunity to reduce or avoid the fine through
compliance.” Id. at 829.
Id. at 1294-95. The Evans court then found that the fines
imposed for the discrete violations of the consent decree were
criminal sanctions. The court reached this conclusion because,
“for each act of contempt, the District was subjected to a
one-time determinate fine” that once imposed could not be
“eliminat[ed] . . . through future compliance.” Id. at 1296.
Faced with the foregoing case law, the District Court in this
case concluded that the per diem fine schedule in the 2006
Order constituted a “civil, coercive remedy.” See 2006 Order,
slip op. at 3, J.A. 489. This conclusion seems most likely
correct in light of Bagwell, Operation Rescue, and Evans, so it
surely did not constitute plain error or an exceptional
circumstance warranting reversal. We recognize that there is
some tension between Operation Rescue and Evans, if one
views the discrete, past violations of the consent decree in Evans
as comparable to the District’s discrete, past violations of the
Settlement Order and 2006 Order in this case. But an argument
framed in this way cannot go very far. The decision in Evans
clearly recognizes that “a per diem fine imposed for each day a
contemnor fails to comply with an affirmative court order is
civil, but an unconditional fine imposed after a finding of
16
contempt is criminal if the contemnor has no subsequent
opportunity to reduce or avoid the fine through compliance.”
206 F.3d at 125 (internal quotation marks and citations omitted)
(emphasis added). In this case, the District was fined pursuant
to a schedule of per diem fines and it had an opportunity to limit
or avoid the fines altogether by complying with the Settlement
Order after the issuance of the 2006 Order. Even if Evans and
Operation Rescue leave some room for debate, there is nothing
in these decisions to indicate that the District Court in this case
committed plain error in reaching the conclusion that it did.
The District Court cited both Bagwell and Evans in its 2006
Order, explaining the legal basis for its fine schedule. See 2006
Order, slip op. at 3, J.A. 489. The District, however, raised no
objections or questions regarding the civil nature of the
contempt proceedings either in 2006 or in 2008. The
preservation requirement is intended to give the parties an
opportunity to try the case on the grounds presented. Allowing
the District to raise this argument now would “skew the balance
between ‘our need to encourage all trial participants to seek a
fair and accurate trial the first time around against our insistence
that obvious injustice be promptly redressed.’” United States v.
Davis, 974 F.2d 182, 190-91 (D.C. Cir. 1992) (quoting United
States v. Frady, 456 U.S. 152, 163 (1982)).
In sum, on the record in this case, neither plain error nor
exceptional circumstances lend merit to the District’s newly
raised challenge to the civil nature of the contempt proceedings
below.
D. Evidentiary Hearing
The District claims that the District Court erred in failing to
provide an evidentiary hearing before imposing the disputed
fines. This claim was never raised below so it is subject to
review only for plain error or if we find exceptional
circumstances. We find neither.
17
It is true that, “[i]n this circuit, ‘[e]very civil contemnor
who asserts a genuine issue of material fact is entitled to a full,
impartial hearing.’” Food Lion, Inc. v. United Food &
Commercial Workers Int’l Union, AFL-CIO-CLC, 103 F.3d
1007, 1019 (D.C. Cir. 1997) (quoting Wash. Metro. Area Transit
Auth. v. Amalgamated Transit Union, 531 F.2d 617, 620
(D.C. Cir. 1976)). The District, however, has raised no genuine
issues of material fact warranting a hearing. The District has not
credibly contested its failure to meet any of the deadlines
pursuant to which it was fined. And it has cited no facts that
might raise any legitimate defense to its contumacious conduct.
Indeed, the District has not advanced a “good faith and
substantial compliance” defense, see Food Lion, Inc., 103 F.3d
at 1017, nor has it seriously argued “that it took all reasonable
steps within [its] power to comply with the court’s order,” as
required by that defense. Id. (internal quotation marks and
citation omitted).
In these circumstances, the District’s claim cannot survive
plain error or exceptional circumstances review.
E. The District’s Challenges to the Fines Imposed
The District makes two additional arguments generally
challenging the fines imposed. It claims, first, that the fines are
“[d]isproportionately [h]igh” for the violations at issue, and,
second, that the fines are unfair because they were “[i]mposed
[m]echanically” under the scheme set forth in the 2006 Order.
Appellant’s Br. at 35. These claims were never raised below so
they are subject to review only for plain error or if we find
exceptional circumstances. We find neither.
This court typically reviews “contempt finding[s]” and
“sanction[s]” for abuse of discretion. See In re Fannie Mae
Sec. Litig., 552 F.3d 814, 818 (D.C. Cir. 2009); Food Lion, Inc.,
103 F.3d at 1016. Given this deferential standard of review, the
District would have been hard pressed to support its claims even
18
if they had been properly raised and preserved. The trial court
imposed the fines pursuant to a previously announced fee
schedule, so the District had fair notice of the sanctions that
might follow any violations of the Settlement Order. The
District Court also specifically considered the severity of each
fine in relation to the harm caused. Moreover, under the scheme
set forth in the 2006 Order, fines are “not . . . automatic,” for
they may be “oppose[d]” by the District; and the District Court
has “discretion to consider any mitigating circumstances
pertaining to specific missed deadlines.” 2006 Order, slip op.
at 3, J.A. 489. Indeed, the District opposed each praecipe, and
the District Court exercised its discretion in declining to impose
contempt fines in some situations with respect to which it
believed that the District had violated the Settlement Order. See,
e.g., 2008 Order, slip op. at 6, J.A. 626.
In these circumstances, the District’s claims do not survive
either plain error or exceptional circumstances review.
F. Contempt for the District’s Alleged Violation of ¶ 80 of
the Settlement Order
Finally, the District argues that the District Court committed
reversible error in subjecting it to a 126-day contempt fine for its
alleged failure to negotiate with appellees under ¶ 80 of the
Settlement Order. This claim was not raised below. However,
the underlying facts are not in dispute, the parties have fully
briefed and argued the issue, and the trial court committed plain
error. We therefore reverse.
Civil contempt may be imposed only when the underlying
order is clear and unambiguous. See, e.g., Broderick v.
Donaldson, 437 F.3d 1226, 1234 (D.C. Cir. 2006); Armstrong,
1 F.3d at 1289 (citing Project B.A.S.I.C. v. Kemp, 947 F.2d 11,
16 (1st Cir. 1991)). “The judicial contempt power is a potent
weapon,” and “[w]hen it is founded upon a decree too vague to
be understood, it can be a deadly one. Congress responded to
19
that danger by requiring that a federal court frame its orders so
that those who must obey them will know what the court intends
to require and what it means to forbid.” Int’l Longshoremen’s
Ass’n, Local 1291 v. Phila. Marine Trade Ass’n, 389 U.S. 64, 76
(1967); see also FED. R. CIV. P. 65(d) (requiring “[e]very order
granting an injunction” to “state the reasons why it issued,”
“state its terms specifically,” and “describe in reasonable detail
. . . the act or acts restrained or required”). Furthermore, a
contemnor cannot be expected to purge civil contempt through
“reduc[tion] or avoid[ance],” see Bagwell, 512 U.S. at 829,
without having clear and unambiguous notice of the proscribed
conduct.
Paragraph 80 of the Settlement Order is clear. It reads:
Before any party moves the Court to enforce or construe
[the requirements of the underlying Settlement Order] . . .
it shall give the other party 10 days’ notice of its intention.
During that 10-day period, the parties shall negotiate in
good faith in an effort to resolve the dispute without
seeking a decision from the Court.
Settlement Order at 46, J.A. 309 (emphasis added). The 2006
Order states that the “deadlines” enforceable through per diem
fines “include the negotiation requirement in paragraph 80.”
2006 Order, order at 2, J.A. 485. This provision was included
in the 2006 Order because,
[i]n many instances, after [appellees] filed requisite notices
[pursuant to] ¶ 80 of the Settlement Order, [the District]
failed to file any response indicating whether they did or
did not oppose the motion and whether they were prepared
to negotiate in good faith during the 10-day pre-filing
period in an effort to resolve the dispute without Court
intervention.
2006 Order, slip op. at 2, J.A. 488 (emphasis added). As the
District Court obviously recognized, the only timing
20
requirement under ¶ 80 directs the parties to negotiate within the
specified 10-day period. In other words, the Settlement Order
says only that “during [the] 10-day period, the parties shall
negotiate in good faith.” It does not state that the District must
negotiate beyond, rather than within, this window.
In short, the language of ¶ 80 is perfectly clear in what it
requires. And there is nothing in the 2006 Order that
forewarned the District that it might be liable for more than the
Settlement Order required. Indeed, ¶ 80 is not only clear, it is
quite sensible in requiring the appellees to afford the District a
small window of opportunity to negotiate any pending disputes
before appellees are allowed to seek judicial redress. But this is
all that ¶ 80 requires.
Even if it were possible to conjure some “ambiguities or
uncertainties” in ¶ 80, we would still be required to read the
Settlement Order and the 2006 Order “in a light favorable to the
person charged with contempt.” See Kemp, 947 F.2d at 16.
Giving the District the benefit of all reasonable inferences to be
drawn from the language of ¶ 80, and giving full effect to the
important principle that “a federal court [must] frame its orders
so that those who must obey them will know what the court
intends to require and what it means to forbid,” Int’l
Longshoremen’s Ass’n, 389 U.S. at 76, we hold that the District
Court committed plain error in subjecting the District to a 126-
day contempt fine for its failure to negotiate with appellees
under ¶ 80 of the Settlement Order.
We also hold that the District Court’s error affected the
District’s substantial rights, see Olano, 507 U.S. at 734-35,
because the error obviously changed the outcome on an
important issue before the trial court. If the District’s fine had
been capped at 10 days, as it should have been, the resulting
sanction would have been $1,750 per violation (or $17,500), i.e.,
a sum far less than the $370,500 fine imposed by the District
Court.
21
In Olano, the Supreme Court makes it clear that “[i]f [a]
forfeited error is ‘plain’ and ‘affect[s] substantial rights,’ the
court of appeals has authority to order correction, but is not
required to do so.” 507 U.S. at 735; see also HARRY T.
EDWARDS & LINDA A. ELLIOTT, FEDERAL STANDARDS OF
REVIEW 94 (2007). “[T]he standard that should guide the
exercise of [this] remedial discretion . . . . [is that the] Court of
Appeals should correct a plain forfeited error affecting
substantial rights if the error ‘seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.’” Id. at
736 (quoting United States v. Atkinson, 297 U.S. 157, 160
(1936)). This standard is easily met in this case. As noted
above, “[t]he judicial contempt power is a potent weapon. When
it is founded upon a decree too vague to be understood, it can be
a deadly one.” Int’l Longshoremen’s Ass’n, 389 U.S. at 76.
When, as in this case, a District Court’s contempt sanction is
premised on an interpretation of a settlement order that finds no
support in the words of the order, “it cannot stand.” Id. “The
most fundamental postulates of our legal order forbid the
imposition of a penalty for disobeying a command that defies
comprehension.” Id. This is clearly an exceptional
circumstance warranting the exercise of our discretion to address
and correct the error.
III. CONCLUSION
The judgment of the District Court is affirmed in part and
reversed in part. The case is hereby remanded for further
proceedings consistent with this opinion.