Harris v. City of Philadelphia

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Precedential or Non-Precedential: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.
_____________________________