Evans, Joy v. Williams, Anthony A.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 14, 2000 Decided March 31, 2000

No. 99-7058

Joy Evans, et al.,
Appellees

v.

Anthony A. Williams, et al.,
Appellants

United States of America,
Appellee

Appeal from the United States District Court
for the District of Columbia
(No. 76cv00293)

Lutz Alexander Prager, Assistant Deputy Corporation
Counsel, argued the cause for appellants. With him on the
briefs were Robert R. Rigsby, Interim Corporation Counsel,

Charles L. Reischel, Deputy Corporation Counsel, and Melvin
W. Bolden, Jr., Trial Counsel.

John L. Jacobus argued the cause for appellees Joy Evans,
et al. With him on the brief were Kelly Bagby and Joseph B.
Tulman. Patricia B. Millerioux entered an appearance.

Linda F. Thome, Attorney, U.S. Department of Justice,
argued the cause for appellee United States of America.
With her on the brief was Bill Lann Lee, Acting Assistant
Attorney General.

Before: Silberman, Williams, and Ginsburg, Circuit
Judges.

Opinion for the Court filed by Circuit Judge Silberman.

Silberman, Circuit Judge: The District of Columbia ap-
peals from an order of the district court imposing contempt
fines of $5,096,340 on it for its failure to comply with a
consent decree. We agree with appellant that the fine was a
criminal sanction that could not be imposed without a criminal
trial; we also agree that the district court abused its discre-
tion in refusing to modify the consent decree. We therefore
reverse.

I.

This case started back in 1976, when residents of Forest
Haven, the District of Columbia's institution for the mentally
retarded, brought a class action alleging a panoply of consti-
tutional violations resulting from poor conditions at the facili-
ty. Named as defendants were the Mayor and four other
District officials (collectively, the "District"), all sued in their
official capacities. The United States soon intervened on the
side of the plaintiffs.

In 1978, the parties agreed to a consent judgment that
called for closing Forest Haven and placing its residents in
"community living arrangements." Over the next few years
the district court entered additional consent decrees. In 1983
it approved the order that underlies this dispute. That
decree governs almost every aspect of the District's treat-

ment of the mentally retarded. In particular, it requires the
District to place specified numbers of Forest Haven residents
in community institutions and to "insure that all vendors are
paid for their goods and services no later than thirty days
following their submission of acceptable vouchers."

By the mid-1990s, the District was confronted with finan-
cial problems of "horrendous proportions" and faced "its
worst crisis in over a century." H.R. Rep. No. 96, 104th
Cong., 1st Sess. 4 (1995). It was running an annual deficit of
over $600 million, and a congressional committee found that
"[t]he District of Columbia is insolvent: The City does not
have enough cash to pay all of its bills." Id. at 5. The
District began missing some of the payment deadlines set out
in the consent decree. In April 1995, on the motion of the
plaintiffs, the district court issued an order to show cause why
the defendants should not be held in contempt. It ultimately
so held but did not impose sanctions. Instead, it appointed a
special master to develop a remedial plan through which the
defendants could purge themselves of contempt, and it or-
dered that the plan include "specific monetary penalties for
noncompliance."

The special master completed her report in January 1996
and issued a supplemental report recommending prospective
sanctions a few months later. The defendants objected,
arguing that the prospective fines proposed were "unduly
harsh and punitive" and that delays in making payments were
"not due to any unwillingness to pay but due to a cash short
fall." But the district court adopted the master's proposed
remedial plan with only slight modifications. The plan pro-
vided that whenever the defendants failed to pay an invoice
within thirty days of submission a fine equal to twice the
amount of the invoice would be imposed. Services provided
by some of the facilities caring for the mentally retarded
qualify for Medicaid reimbursement. Because the District
made all Medicaid payments for each month at one time, and
because the payments due to the care providers averaged
approximately $2.8 million per month, a fine equal to twice
the amount of any Medicaid arrearage would have been very
large. The court therefore applied the doubling fines only to

non-Medicaid payments. Late Medicaid payments, regard-
less of amount, were to result in a fine of $5,000 per day.

The District continued to miss payment deadlines, and in
April 1997 the plaintiffs moved for the imposition of sanctions.
While the sanctions motion was pending, the District sought
to modify the consent decree so that it would require that
vendors be paid within 45 days, rather than 30 days. Its
motion to that effect included affidavits from the District's
financial officials explaining that cash flow problems required
a 45-day payment cycle. The court referred both motions to
the special master.

The master concluded that the motion for sanctions was
unnecessary because the remedial plans made fines automat-
ic. She thought the fines were civil coercive sanctions, so the
defendants were not entitled to the protections of criminal
procedures. Although she did not formally find that circum-
stances had changed so as to warrant modifying the order as
the defendants requested, she did recommend three changes
to the schedule of sanctions which essentially, at least pro-
spectively, gave the District the relief it sought. First, fines
for missed payments would be forgiven unless the non-
payment continued until the 45th day. Second, fines for
delays in non-Medicaid payments would be reduced to $1,000
per day, regardless of the amount of the payment, and third,
fines for delays in Medicaid payments would be increased
from $5,000 per day to $10,000 per day.

The District objected to the special master's report and
demanded a jury trial. In Evans v. Williams, 35 F. Supp. 2d
88 (D.D.C. 1999), the district court adopted the special mas-
ter's factual findings. Although it disagreed with the mas-
ter's conclusion that the fines were automatic (noting that
automatic fines would amount to summary punishment for an
indirect contempt, a violation of due process), it granted the
plaintiffs' motion to impose fines. The district judge agreed
with the special master that the fines were civil rather than
criminal. Therefore provision of criminal procedures was
unwarranted, and the court rejected the District's objection
that changed circumstances had made the imposition of sanc-

tions unjust. It also adopted the special master's conclusions
with respect to modification of the order and the remedial
plan. But it modified the remedial plan only prospectively
from the date of its decision, which was almost two years
after the defendants had sought the modification.

The court ordered the District to pay $5,096,340 in fines,
and the District appealed.

II.

This case turns entirely on the proper characterization of
the contempt fine. Was it civil or criminal? If the fine was
criminal then it may be imposed only if the District's non-
compliance--which the District claims was practically un-
avoidable--is proven beyond a reasonable doubt to be willful.
See United States v. Rapone, 131 F.3d 188, 195 (D.C. Cir.
1997). If it was civil the District would have had to show that
compliance was impossible to avoid the sanction. Perhaps of
even greater significance, if the judge's order is criminal in
character (and the fine is serious), then the District is entitled
to a jury trial. See Bloom v. Illinois, 391 U.S. 194, 198
(1968).

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 "paradig-
matic 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.

The District argues that the fines were indisputably not
compensatory (a classic aspect of a civil fine), for they were
paid to the court and not at all calibrated to the damage
caused by the District's conduct. Moreover, the fines, ac-
cording 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, the fines were designed primarily to punish past
acts rather than coerce future conduct and therefore should
be thought punitive.1

Appellees argue instead that the fines should be seen as
coercive and therefore civil in character because the schedule
of prospective fines was announced in advance. The District
therefore 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. The United States makes a similar
argument: the fines "were imposed for each day or month in
which the defendants failed to comply with the 30-day pay-
ment requirement, and ended once the defendants complied
with the requirement." In effect, the government would
treat the defendants' contempt as one ongoing systemic prob-
lem of noncompliance with the consent decree. Each missed
bill payment deadline would be another instance of the ongo-
ing contempt. On this view the fines for missed bill pay-
ments were coercive sanctions that were imposed only so long
as the defendants remained in contempt and that stopped
being imposed once the defendants began to comply.

Recently the Supreme Court in Bagwell had occasion to
struggle with the elusive distinction between civil and crimi-
nal contempt fines. In Bagwell a state court had imposed

__________
1 The District does not challenge the per diem fines associated
with late Medicaid payments (even to the extent of raising an
impossibility defense). We therefore discuss only the doubling fines
associated with non-Medicaid payments.

fines of $52 million against the United Mine Workers for
repeated violations of an injunction prohibiting the union and
its members from engaging in illegal picketing practices,
including throwing rocks at employees and obstructing access
to company facilities. The court had set forth a prospective
schedule of fines, which it too had characterized as "civil and
coercive," saying that payment "would only be required if it
were shown the defendants disobeyed the Court's orders." Id.
at 824. The Supreme Court nevertheless held that the
sanctions were criminal and that the union was entitled (due
process) to the protections of criminal procedures.

The Supreme Court began its analysis by noting that the
fines were not compensatory because they were paid to the
court and not the company that was injured by the union's
conduct. Then, it recognized the futility of distinguishing
between coercing affirmative acts and punishing prohibited
conduct (pointing out, for example, that "an injunction order-
ing the union: 'Do not strike,' would appear to be prohibitory
and criminal, while an injunction ordering the union: 'Contin-
ue working,' would be mandatory and civil"). Id. at 835. Nor
did it attach significance to the fact that the trial court had
prospectively announced a schedule of sanctions, reasoning
that "the union's ability to avoid the contempt fines was
indistinguishable from the ability of any ordinary citizen to
avoid a criminal sanction by conforming his behavior to the
law." Id. at 837. It thought that the fines were most closely
analogous to fixed, determinate criminal fines that the union
had no chance to purge once imposed.

Appellees' and intervenor's effort to lump together each
District action or inaction in a continuous course of non-
compliance is inconsistent with the Supreme Court's Bagwell
analysis. If their approach governed, the United Mine Work-
ers' contempt would have been treated not as a series of
discrete acts but as an ongoing pattern of noncompliance with
the order to refrain from violence. Each fine would have
been thought imposed not for a particular violent act but as
additional coercion (like a per diem fine) for a continuation of
the ongoing contempt. Accordingly, drawing upon Bagwell, it
is improper to regard the District as capable of purging itself

of contempt by paying a bill before the thirtieth day--it
simply was not in contempt until it failed to pay on the
thirtieth day. Each missed payment was a separate violation
of the consent decree and a separate act of contempt. And
for each act of contempt, the District was subjected to a one-
time determinate fine; once it was imposed, there was no
opportunity to eliminate it through future compliance. To be
sure, the District could have avoided liability had it paid each
bill before the thirtieth day. But as the Bagwell Court
pointed out, this is no different from any citizen's ability to
avoid punishment by conforming his conduct to the law.

Appellees also argue that the fines are not large enough to
be scrutinized under Bagwell.2 They do not suggest that a
fine of over $5 million is not "serious"--obviously it is.
Instead, they contend that the many smaller fines that make
up the $5 million should be evaluated separately. This over-
looks the large size even of some of the component fines (for
example, a $104,600 bill paid on the 31st day produced a
$209,200 fine). More fundamentally, it is at odds with the
approach taken by Bagwell, which considered the amount of
the total fine. See id. at 837 ("The fines assessed were
serious, totaling over $52 million.") (emphasis added); see
also NOW v. Operation Rescue, 37 F.3d 646, 660 (D.C. Cir.
1994) (Aggregate fine of $193,623 was "large enough to invite
our scrutiny under the principles enunciated in Bagwell.").

In any event, it was the nature of the injunction itself,
rather than the form or amount of the fines, that appears to
have been the key to the Court's determination that the
contempt was criminal in character in Bagwell. The Court
described the injunction as establishing a "detailed code of
conduct," Bagwell, 512 U.S. at 836, and it was that "consider-
ation" that convinced the court that the fines were criminal.

The union's sanctionable conduct did not occur in the
court's presence or otherwise implicate the court's ability
to maintain order and adjudicate the proceedings before

__________
2 Neither the appellees nor the intervenors argue that, even if
the fine is criminal, it is nevertheless "petty" and could be imposed
without a jury trial. Cf. Taylor v. Hayes, 418 U.S. 488 (1974).

 it. Nor did the union's contumacy involve simple, affir-
mative acts, such as the paradigmatic civil contempts
examined in Gompers. Instead, the Virginia trial court
levied contempt fines for widespread, ongoing, out-of-
court violations of a complex injunction. In so doing, the
court effectively policed petitioners' compliance with an
entire code of conduct that the court itself had imposed.
The union's contumacy lasted many months and spanned
a substantial portion of the State.

Id. at 837-38.

In response to the District's claim that the order before us
is just the same kind of complex injunction that was before
the Court in Bagwell, appellees (and the intervenors) argue
that we should see the consent decree as only addressing
various simple discrete acts; in other words, they would
disaggregate the decree. But, if anything, the decree here is
more far-reaching than the Bagwell injunction which, after
all, did not seek to control the union's business. It only
prohibited violence at a strike at one company. Here, by
contrast, the decree governs the administration of an entire
governmental program in the District of Columbia. It pre-
scribes a complete code of conduct--originally covering ev-
erything from bill payments to staffing to air conditioning--
that the district court has enforced for years. Even the
payment requirement has complex elements because the Dis-
trict paid over one hundred non-Medicaid providers each
month.

Appellees complain that if sanctions such as these were
deemed criminal and not civil, it would be difficult for the
court to manage litigation seeking institutional reform. That
may well be so. Giving alleged wrongdoers the benefit of a
hearing before a neutral factfinder--particularly a jury--is
always in some sense an impediment to judicial power. And
it is not surprising that district courts around the country,
reluctant to surrender part of their power to coerce obedience
to their decrees, have resisted the logic of Bagwell.3 But as

__________
3 See, e.g., Crowe v. Smith, 151 F.3d 217, 221 (5th Cir. 1998)
(reversing order "imposing serious criminal sanctions ... via a
manifestly civil process"); Mackler Prods., Inc. v. Cohen, 146 F.3d

the Supreme Court noted, there are countervailing consider-
ations. When a district judge assumes the responsibility to
regulate the activities of a large institution and then seeks to
identify and punish violators of his or her injunction, he or
she comes perilously close to fusing the powers which our
Constitution separates. See Bagwell, 512 U.S. at 831 ("Un-
like most areas of law, ... civil contempt proceedings leave
the offended judge solely responsible for identifying, prose-
cuting, adjudicating, and sanctioning the contumacious con-
duct."). The Court was not unaware that its decision would
lay "burdens on courts' ability to sanction widespread, indi-
rect contempts of complex injunctions," id. at 838--nor are
we. Because the defendants were not given the benefit of
criminal procedures, the order imposing the fine must be
reversed.4

III.

There remains the propriety of the district court's refusal
to modify the consent decree. The practical consequence of
this issue has been somewhat attenuated by the special
master's decision to modify the fine structure, but the ques-
tion remains relevant because the fines were modified only
prospectively. The District still faces the possibility of being
fined for late payments made between April 1997 (when it
made the motion to modify) and February 1999 (when the
fine schedule was modified).

Federal Rule of Civil Procedure 60(b)(5) permits a court to
modify a judgment or order when "it is no longer equitable
that the judgment should have prospective application." Ap-

__________
126 (2d Cir. 1998) (reversing a $10,000 punitive fine imposed without
criminal procedures); Law v. NCAA, 134 F.3d 1025 (10th Cir. 1998)
(reversing retroactively imposed per diem fines); In re E.I. DuPont
de Nemours & Co.-Benlate Litigation, 99 F.3d 363 (11th Cir. 1996)
(reversing an over $13,000,000 punitive fine imposed without crimi-
nal procedures).

4 Because we have determined that the District must be given a
criminal trial, we do not address the argument that the district
court abused its discretion in refusing to consider the defense of
impossibility.

pellant argues that under Rufo v. Inmates of the Suffolk
County Jail, 502 U.S. 367 (1992), the district court should
have granted its motion to modify. Rufo held that the party
seeking a modification need not make a "clear showing of
grievous wrong evoked by new and unforeseen conditions"--a
standard that had been applied since United States v. Swift &
Co., 286 U.S. 106, 119 (1932). It pointed out that flexibility is
especially important in institutional reform litigation: "Be-
cause [consent] decrees often remain in place for extended
periods of time, the likelihood of significant changes occurring
during the life of the decree is increased." Rufo, 502 U.S. at
380. In particular, "[m]odification of a consent decree may be
warranted when changed factual conditions make compliance
with the decree substantially more onerous." Id. at 384.
While a modification should not be granted because of "events
that actually were anticipated" by the parties, the party
seeking a modification need not show that the changed cir-
cumstances were unforeseeable. Id.

To decide whether the District's financial problems were a
changed circumstance, we first must answer the antecedent
question: changed relative to when? The District looks to
the 1983 consent decree, the appellees and the United States
to the 1996 remedial plan. But the 1996 remedial plan was
designed simply to implement the consent decree and to
address the district's failure to make payments in accordance
with it. The substantive obligations imposed on the district
all stem from the 1983 decree. Our focus might be different
if the remedial plan had been based on a comprehensive
reexamination of the obligations in the 1983 decree. In that
case, it might be thought that the District was obliged to
make its claim of financial hardship then. But the aims of the
remedial plan were more modest: the judge explained that its
purpose was simply "to bring the District into compliance
with its outstanding obligations." It is true that the judge
also invited the parties to seek appropriate modifications of
the consent decree in light of changed circumstances. But
even though the District did not in so many words request
relief from the 30-day payment requirement, it did object
(repeatedly) to being sanctioned for late payments, explaining

that it expected to be unable to pay on time. In any event,
the parties do not appear to have regarded the remedial plan
as a complete solution to all of the problems that had arisen
under the consent decree. They thought that the District's
financial difficulties still might require a future solution. The
special master noted that the possibility of further modifica-
tions had been discussed, and the judge observed that the
District was in a time of "transition" and its ability to make
timely payments might be contingent on the actions of Con-
gress. We therefore think we must look at whether circum-
stances have changed since 1983 rather than at whether they
have altered only in the last few years.

The District makes the obvious point that no one in 1983
anticipated the District's insolvency or its crushing debt
burden. And as Rufo explained, "[f]inancial constraints may
not be used to justify the creation or perpetuation of consti-
tutional violations, but they are a legitimate concern of gov-
ernment defendants in institutional reform litigation and
therefore are appropriately considered in tailoring a consent
decree modification." Id. at 392-93. Appellees respond that
although this particular financial crisis was not contemplated,
the parties certainly had in mind the District's generic inabil-
ity or refusal to pay the vendors--that was the very reason
the 30-day requirement was part of the consent decree. But
Rufo's modification standard does not require absolute un-
foreseeability. It is enough that the parties did not actually
contemplate the changed circumstances. And the crisis of
the 1990s was different in kind rather than degree. More-
over, the 30-day payment requirement likely was intended to
protect the class members against bureaucratic neglect, not
against the District's near-bankruptcy. In truth, the consent
decree was negotiated with the expectation that the District
would be able to pay its bills. Once it could not, circum-
stances had changed.

The appellees contend that even with the District's financial
problems, a 30-day payment schedule is not unreasonable or
onerous. But the District submitted affidavits to the con-

trary, and the district court seems at least implicitly to have
resolved this question in its favor, for the effect of its ruling is
to give the District the benefit of a 45-day payment schedule,
albeit only after February 1999. The judge offered no reason
why the District's relief from fines should not extend to the
point at which it made the motion--nor can we think of one.

We do not of course suggest that a party may be relieved
from the obligation to comply with an injunction simply by
making a motion for a modification. But here the District
claimed that it could not comply, despite making a good faith
effort to do so. If true, this should have relieved it from
liability. See Tinsley v. Mitchell, 804 F.2d 1254, 1256 (D.C.
Cir. 1986) ("If a party lacks the financial ability to comply
with an order, the court cannot hold him in contempt for
failing to obey."). And the district court did not find that the
District's claim was wrong. Instead, it adopted the master's
report which simply pointed out that the District's financial
situation was no worse than at the time the remedial plan was
adopted in 1996--a fact that as we have explained is not
relevant.

Nor is the United States correct when it invokes the
collateral bar rule of Walker v. City of Birmingham, 388 U.S.
307 (1967). Walker provides that the invalidity of an injunc-
tion is not a defense to contempt, so that a party faced with
an invalid injunction must have the injunction modified or
vacated; he cannot simply ignore it. The theory behind that
rule is rather obvious, but it does not extend to cases where a
party is faced with an injunction with which it is unable to
comply. Walker cannot justify subjecting the District to
liability for the period in which the district court was consid-
ering the modification motion.

We conclude that it was an abuse of discretion for the
district court not to grant the District's motion retroactive to
the time at which it was made.

 * * * *

The order of the district court is reversed, and the case is
remanded for further proceedings consistent with this opin-
ion.

So ordered.