United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 4, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-60080
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CITY OF JACKSON, MISSISSIPPI,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
Before HIGGINBOTHAM, SMITH, and WIENER, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellant City of Jackson, Mississippi (the “City”)
appeals the district court’s order holding it in civil contempt for
willfully violating a consent decree by denying a special use
permit. As punishment for the City’s actions, the district court
ordered it to pay attorney’s fees to the Plaintiff-Appellee United
States of America (the “government”), as well as to the entity
aggrieved by the City’s denial. Specifically, the City now appeals
the remedy fashioned by the district court. Finding no merit in
any of the City’s contentions on appeal, we affirm the district
court’s order in all respects.
I. FACTS & PROCEEDINGS
As the City acknowledges, the essential facts relevant to this
appeal are undisputed. In 1996, the government sued the City,
charging it with violating provisions of the Fair Housing
Amendments Act (“FHAA”).1 The government asserted that the City’s
zoning ordinances and policies violated the FHAA by failing to make
the reasonable accommodations necessary to afford disabled persons
equal housing opportunities. Together, the government and an
intervenor that is no longer involved in this litigation succeeded
in obtaining summary judgment against the City on the issue of
liability. In 1997, the government and the City entered into a
consent decree in lieu of proceeding to trial on the issue of
remedies.
The consent decree, in language that tracks the FHAA’s anti-
discrimination provisions, prohibits the City from engaging in
specified discriminatory housing practices. The consent decree
also compelled the City to amend its zoning ordinance to permit
group homes for disabled persons in residential districts zoned R-
1.2 Most important for today’s purposes, the consent decree
1
42 U.S.C. § 3601, et seq. (2000). In 1988, Congress
passed the Fair Housing Amendments Act of 1988, Pub. L. 100-430,
102 Stat. 1619, amending 42 U.S.C. §§ 3601-3619, to extend the
Fair Housing Act’s (“FHA”) promise of equal opportunity in
housing to individuals with handicaps and families with children.
2
The City amended its zoning ordinance to comply with the
consent decree. The amended ordinance provides, inter alia, that
2
contains express remedies for non-compliance:
Upon any failure by the City, whether willful or
otherwise, to perform in a timely manner any act required
by this Consent Decree, or in the event of any other
material act by the City violating any provision of this
Consent Decree, the United States or plaintiff-intervenor
may move this Court to impose any remedy authorized by
law or equity, including but not limited to an order
requiring performance of an act, deeming an act to have
been performed or awarding any damages, costs and/or
attorneys’ fees which may be occasioned by the City’s
violation of this Consent Decree. Notwithstanding the
foregoing, the parties shall endeavor in good faith to
resolve informally any difference regarding the
interpretation of, or compliance with, this Consent
Decree prior to bring[ing] such matters to the Court for
resolution. (emphasis added).
In 1998, Christians in Action (“CA”), a Mississippi non-profit
organization, applied to the City for a special use permit to
relocate its shelter for abandoned and abused children to a
residential area in the City zoned R-1. After CA’s initial
application was denied, it sought reconsideration to present
evidence on the children’s disabilities. The City directed CA to
submit a new application, which CA did in May 2000.3
The next month, the City’s Planning Board held an evidentiary
hearing on CA’s request. At that hearing, CA’s attorney, James A.
Peden, Jr., described the program and the need for the type of
housing administered by CA. Mr. Peden also presented
group homes which house between 7 and 12 handicapped residents
are permitted in R-1 districts if they are established in
accordance with the ordinance. The operator of such a group home
must obtain a special use permit from the City.
3
The government does not assert that the City’s initial
denial of CA’s application violated the consent decree.
3
uncontradicted evidence on behalf of CA demonstrating that the
City’s grant of the required special use permit would have no
adverse effect on the neighborhood or nearby property values. At
the hearing, the Deputy City Attorney reminded the Planning Board
of the history of the consent decree and of the City’s obligations
under it, emphasizing that the City could not simply deny the
permit for such capricious reasons as, “‘We want it,’ or ‘We don’t
want it,’ or the neighborhoods want it or don’t want it.” The
Deputy City Attorney admonished that such grounds are “not legal
criteria.” Nevertheless, the Planning Board voted to deny CA’s
application for the special use permit.
In September 2000, the City Council considered CA’s
application in light of the record developed before the Planning
Board. At this meeting, Mr. Peden reminded the City Council that
the record included evidence demonstrating that the CA children
were “handicapped” within the meaning of the FHAA. Several
homeowners spoke out against granting CA the special use permit, as
did some members of the City Council. For example, Councilmember
Chip Reno articulated his opposition to granting the special use
permit by denouncing the courts’ interpretations of the FHAA:
Mr. Peden did a fantastic job explaining to you what the
law was, and we have heard from our attorneys what the
law has been in terms of its interpretation by the
courts. I think that interpretation is unjust. I will
explain why.
According to the interpretation, any residence basically
in the City of Jackson R-1, R-1A, can be purchased and
application petitioned for special use in order that a
4
handicapped group home can go into that location.
Therefore, Chip Reno next door to his home, someone could
purchase that particular home in a neighborhood and
petition for that type of use. And I submit that that is
wrong. The judicial interpretation of this particular
piece of legislation from Congress is absolutely,
positively wrong.
Other members of the City Council expressed agreement, and it voted
unanimously to deny CA’s application. As a result, the government
wrote to the City demanding an explanation for its denial. Instead
of responding to the government, the City Council voted to
reconsider CA’s request.
In November 2000, the City Council conducted a second hearing
on the matter. The City’s attorney and Mr. Peden again reminded
the City Council of the City’s legal obligations, and again area
landowners made their opposition known. At this hearing,
Councilmember Leslie McLemore cautioned the City Council against
violating the consent decree:
[T]he thing that I’m reminded of ... is that the consent
decree is something that we should not take too lightly.
I really don’t think that our city ought to be in the
business of defying consent decrees. Last week, I noted
that the police department, the fire department, these
departments are what they are because of consent decrees
which we systematically followed and were forced to
follow by the court. I’m also reminded that I obtained
the right to vote in 1965 because somebody on the federal
level said that African Americans should have a right to
vote. I’m reminded that the 1964 Civil Rights Act was
enacted because somebody on the federal level said that
we should have our civil rights. I could go on and on.
I think you understand my point.... I know I am where I
am because someone prevailed external to Mississippi to
make it possible for me to be where I am now, along with
the struggle of people that fought and died and bled for
the right to vote in this State.
5
Notwithstanding Councilmember McLemore’s entreaty, the City Council
denied the requested permit by a tie vote. The next month, the
City responded to a letter from the government stating simply,
“[i]t is the City of Jackson’s position that its records and orders
speak for themselves. It is the City’s position that it acted
properly in denying the above referenced petition.”
In January 2001, the government filed a motion in the district
court to have the City held in contempt for violating the consent
decree. Just one week later, the City Council once more voted to
reconsider CA’s request for a special use permit —— this time
approving it.
The government filed a motion in the district court for
summary judgment on the issue of the City’s contempt. After
conducting a hearing on the contempt motion, the district court
found that the City had willfully violated the consent decree and
held the City in contempt. Because the City had already issued a
special use permit to CA, however, the court directed the
government to file a motion for damages resulting from the contempt
proceedings. The government requested attorney’s fees at a rate of
$125 per hour, as well as expenses for itself and attorney’s fees
for CA. In November 2001, at the hearing on the government’s
motion for fees, the City conceded that its denial of CA’s special
use permit violated both the consent decree and the FHAA. The
City, nevertheless, opposed an award of attorney’s fees to the
government at a rate of $125 per hour and challenged any award of
6
attorney’s fees to CA.
In October 2002, the district court issued a comprehensive
memorandum opinion and order, awarding the government some $39,000
in expenses and attorney’s fees (calculated at a rate of $125 per
hour) and ordering the City to pay CA damages of approximately
$13,000, the total amount of the expenses, costs, and attorney’s
fees incurred by CA.
II. ANALYSIS
The City called this tune and lost. In a thinly-veiled
attempt to avoid paying the piper, however, the City would now hide
behind the American Rule of fee-shifting. The City —— and those
city officials who ignored the sound advice of the City’s own
attorney and Councilmember McLemore —— have only themselves to
blame for the sanctions imposed by the district court.
Unfortunately, it is the taxpayers of the City who will have to
suffer the consequences of the City’s wasteful actions.
A. STANDARD OF REVIEW
We review contempt orders and sanctions imposed under a
court’s inherent powers for an abuse of discretion.4 We review the
district court’s underlying findings of fact for clear error and
4
Am. Airlines, Inc. v. Allied Pilots Ass’n, 228 F.3d 574,
578 (5th Cir. 2000) (citing Martin v. Trinity Indus., Inc., 959
F.2d 45, 46 (5th Cir. 1992); Crowe v. Smith, 151 F.3d 217, 226
(5th Cir. 1998)).
7
its underlying conclusions of law de novo.5 In reviewing sanctions
imposed under the district court’s various sanctioning powers, we
will not substitute our judgment for that of the district court.6
B. REMEDIES FOR CIVIL CONTEMPT
In a civil contempt proceeding, the movant must establish by
clear and convincing evidence that (1) a court order was in effect,
(2) the order required specified conduct by the respondent, and (3)
the respondent failed to comply with the court’s order.7 As the
City concedes that it violated the consent decree and the FHAA, the
government clearly has met its burden for establishing contempt.
On appeal, the City acknowledges this much —— as it must. But the
City remains unhappy with the remedy fashioned by the district
court as a sanction for the City’s conduct.
1. Authority To Award Attorney’s Fees to the
Government.
The City first advances that the district court had no
authority under the FHAA or the law of civil contempt to award
attorney’s fees to the government. The City relies on the FHAA’s
“prevailing party” provision, which expressly exempts the federal
government from recovering attorney’s fees. Section 3614 of Title
42, which authorizes the attorney general to commence civil actions
5
Id. (citing Petroleos Mexicanos v. Crawford Enter., Inc.,
826 F.2d 392, 401 (5th Cir. 1987)).
6
Topalian v. Ehrman, 3 F.3d 931, 935 (5th Cir. 1993).
7
Am. Airlines, 228 F.3d at 581.
8
to enforce the FHAA, gives district courts the discretion to “allow
the prevailing party, other than the United States, a reasonable
attorney’s fee and costs.”8 The City’s reliance on the FHAA’s
prevailing party fee-shifting provision rings hollow, to say the
least.
The spurious nature of the City’s argument becomes self-
evident when we note that, on appeal, it has failed even to mention
the remedial provision of the consent decree, which expressly
empowers the court “to impose any remedy authorized by law or
equity, including but not limited to an order ... awarding any
damages, costs and/or attorneys’ fees which may be occasioned by
the City’s violation of this Consent Decree.”9 Indeed, the consent
decree expressly permits these remedies, regardless of whether the
City’s violation is “willful or otherwise.”
Consent decrees have elements of both contracts and
judicial decrees. A consent decree embodies an agreement
of the parties and is also an agreement that the parties
desire and expect will be reflected in, and be
enforceable as, a judicial decree that is subject to the
rules generally applicable to other judgments and
decrees.10
8
42 U.S.C. § 3614(d)(2) (2000) (emphasis added).
9
We are not pleased by the fact that the City’s appellate
brief makes no mention of this critical aspect of the case and
remind counsel of their ongoing duty of candor to the court.
See, e.g., United States v. Shaffer Equip. Co., 11 F.3d 450, 457
(4th Cir. 1993) (“[A]ttorneys are expected to bring directly
before the Court all those conditions and circumstances which are
relevant in a given case.”).
10
Frew v. Hawkins, 504 U.S. ---, 124 S.Ct. 899, 904 (2004)
(internal quotations and citations omitted).
9
The City struck a deal with the government and bound itself to an
enforceable judicial order. Insofar as the district court’s
authority to award attorney’s fees to the government is concerned,
we need to look no further than the plain language of the consent
decree.
2. Award of Attorney’s Fees to the Government at
a Rate of $125 per hour.
In the alternative, the City contends that even if the
district court was empowered to award attorney’s fees to the
government, it could not do so at a rate of $125 per hour. Rather,
asserts the City, the court is limited to an hourly rate based on
what the City characterizes as the government’s “actual expense,”
i.e., an hourly rate determined by the government attorney’s actual
salary, which here amounts to approximately $55 per hour. The City
complains that an award of any more would result in an
unjustifiable “windfall” to the government.
We observe first that the vigor of our review of a district
court’s sanction award depends on the circumstances of the case.
“If the sanctions imposed are substantial in amount, type, or
effect, appellate review of such awards will be inherently more
rigorous; such sanctions must be quantifiable with some
precision.”11 We do not consider the total sanctions awarded
11
Topalian, 3 F.3d at 936 (emphasis added) (quoting Thomas
v. Capital Security Svcs., 836 F.3d 866, 833 (5th Cir. 1988) (en
banc)).
10
against the City of some $52,000 to be on the high end of the
scale.
To put the quantum of this award in context, we note several
representations made by counsel for the City in its Motion to
Reinstate Appeal Dismissed for Want of Prosecution and to File
Brief Out of Time —— which we granted. In that motion, the City
asserted that its counsel was unable to file the City’s appellate
brief timely, in part because of the substantial amount of
responsibility on the city counsel’s docket. Among those projects
were a $12 million railroad depot renovation project, a $13 million
purchase of a water filtration system, and a $40 million bond
refinancing. In light of the magnitude of these projects, we find
the City’s position untenable. The City’s own obstinance resulted
in the waste of the government’s, CA’s, and the federal courts’
time and resources. The City’s conduct senselessly delayed CA’s
ability to provide services for which the uncontroverted evidence
showed there to be a “critical need in the City.” These
considerations and the fact that the City did not even bother to
file a reply brief on appeal, convince us that the sanctions
imposed by the district court could hardly be considered
“substantial.”
The amount of the award, of course, must ultimately be
determined by the district court on the facts of each case. When
a court awards attorney’s fees to the government as a sanction for
an adverse party’s improper conduct, however, we treat the hourly
11
rate in the local legal community as a benchmark for determining
the amount of attorney’s fees to be imposed. This conclusion is
supported by the Supreme Court’s ruling in Blum v. Stenson,12 in
which the Court held that “reasonable fees” under fee-shifting
statutes such as 42 U.S.C. § 1988 “are to be calculated according
to the prevailing market rates in the relevant community,”
regardless of whether the plaintiff is represented by a private law
firm or a legal aid society.13
The Eighth Circuit and the Third Circuit have extended Blum’s
reasoning to the instant context. In United States v. Big D
Enters., Inc.,14 the Eighth Circuit adopted the prevailing market
rate standard for assessing reasonable attorney’s fees in favor of
the government in the context of Rule 37 sanctions:
We see no reason why the government should not be able to
recover a reasonable fee for its attorney’s work
calculated at the same rate that the attorney would be
compensated by the prevailing local economy. In
examining the hourly rate of the local legal community,
it is irrelevant whether counsel seeking the attorney’s
fees is employed by the private or public sector. What
matters is the attorney’s experience and ability.15
The Third Circuit has reached the same result in the Rule 11
12
465 U.S. 886 (1984).
13
465 U.S. at 892-95.
14
184 F.3d 924 (8th Cir. 1999).
15
Id. at 936.
12
context.16 In the absence of a more specific governing rule or
agreement,17 the same standard for assessing attorney’s fees in
favor of the government should apply across-the-board to all of the
district court’s sanction powers.18
Myron S. Lehtman, the attorney who represented the government
in the district court, has been practicing law for almost 30 years.
Although his hourly rate as determined by the local legal market is
probably much higher, the government suggested —— as a compromise
—— that it be reimbursed at a rate of $125 per hour, which is the
rate specified in the Equal Access to Justice Act (“EAJA”).19 The
16
See Napier v. Thirty or More Unidentified Federal Agents,
Employees or Officers, 855 F.2d 1080, 1092-93 (3d Cir. 1988)
(“[W]e can perceive no difference between the situation of an
Assistant U.S. Attorney and that of a public interest lawyer
whose services, the Supreme Court has held, are to be valued at a
market rate, even though he or she, like Assistant U.S.
Attorneys, had no regular billing rate.”) (citing Blum, 465 U.S.
at 895).
17
The consent decree says nothing about the rate at which
the government could recover attorney’s fees. We, therefore,
apply the standard that would normally govern the award of
attorney’s fees to the government as a sanction against the
adverse party.
18
See generally Topalian, 3 F.3d at 934-36 & n.5.
19
28 U.S.C.S. § 2412(d)(2)(A) (Law. Co-op. 2002) (limiting
attorney’s fees awarded under the EAJA to $125 per hour “unless
the court determines that an increase in the cost of living or a
special factor, such as the limited availability of qualified
attorneys for the proceedings involved, justifies a higher fee”).
The EAJA authorizes a court, unless expressly prohibited by
statute, to award fees and expenses “to the prevailing party in
any civil action brought by or against the United States or any
agency or any official [thereof] acting in his or her official
capacity.” 28 U.S.C.S. § 2412(b).
13
government relied on the EAJA only to illustrate that its request
for $125 per hour was reasonable. We are satisfied that the
district court did not abuse its discretion in awarding attorney’s
fees to the government at a rate of $125 per hour.
3. Award of Damages to CA Equal to its Costs,
Expenses, and Attorney’s Fees.
The City’s final contention on appeal is embodied in its
challenge to the district court’s award to CA of damages equal to
its expenses, costs, and attorney’s fees. The district court
expressed two alternative justifications for concluding that an
award of attorney’s fees to CA was warranted. The district court’s
award to CA is appropriate under either approach.
a. CA as a “person aggrieved” or
private plaintiff under the FHAA
Although CA never formally intervened in the contempt
proceedings initiated by the government, the district court
determined that CA could be characterized as a private plaintiff
under the FHAA and therefore entitled to damages equal to its
expenses, costs, and attorney’s fees. CA could have intervened
under 42 U.S.C. § 3614(e), but it did not —— probably because the
City threw in the towel even before the bell sounded for round one.
A court may award a party who intervenes under § 3614(e) “such
appropriate relief ... as is authorized to be granted to a
plaintiff in a civil action arising under [§ 3613].”20 Inasmuch as
20
42 U.S.C. § 3614(e).
14
CA could have intervened and sought these remedies, reasoned the
district court, it could consider CA a private plaintiff and award
it damages equal to its expenses, costs, and attorney’s fees.21
Even absent intervention by CA, the district court was well
within its power under the express authority of the FHAA to award
CA its expenses, costs and attorney’s fees. In § 3614(d)(1)(B),
the FHAA explicitly permits courts to “award such other relief as
the court deems appropriate, including monetary damages to persons
aggrieved.”22 The district court did not exceed its power by
awarding attorney’s fees to CA, which was an “aggrieved person”
within the meaning of the FHAA.23
b. Award to CA of damages amounting to
its expenses, costs, and attorney’s
fees for the City’s willful
violation of the consent decree
The district court concluded separately that CA was entitled
to recover its expenses, costs, and attorney’s fees for the City’s
willful disobedience of a court order. The court relied on
Fleischmann Distilling Corp. v. Maier Brewing Co.,24 in which the
21
See 42 U.S.C. § 3613(c).
22
In United States v. Balistrieri, the Seventh Circuit held
that Ҥ 3614(d) allows the government to seek compensatory
damages for an aggrieved person without that person’s
intervention.” 981 F.2d 916, 928 (7th Cir. 1992). We agree.
“[N]othing in § 3614 expressly requires an aggrieved party to
intervene before the court may award damages in a case brought by
the Attorney General.” Id.
23
See 42 U.S.C. § 3602(i) (defining “aggrieved person”).
24
386 U.S. 714 (1967).
15
Supreme Court noted that “in a civil contempt action occasioned by
willful disobedience of a court order an award of attorney’s fees
may be authorized as part of the fine to be levied on the
defendant.”25 In response, the City invokes our decision in
Northside Realty Assoc., Inc. v. United States26 to argue that the
district court lacked the authority to award a nonparty
compensatory damages in a contempt proceeding.
i. The Northside Realty Decision
At first blush, one can see why the City would seek refuge in
this decision, as its facts resemble those before us. On further
examination, however, it becomes apparent that Northside Realty
cannot carry the day.
In that case, the Appellant, Northside Realty Associates, Inc.
(“Northside”), was held in civil contempt of a federal injunction
25
Id. at 718 (emphasis added). There is disagreement among
the courts over whether a showing of “bad faith” or “willful
disobedience” on the part of the contemnor is required to justify
an award of attorney’s fees. See Food Lion, Inc. v. United Food
and Commercial Workers Intern. Union, AFL-CIO-CLC, 103 F.3d 1007,
1017 n.14 (D.C. Cir. 1997) (collecting conflicting cases). Our
circuit, however, has consistently held that good faith is not a
defense to a finding of civil contempt. See, e.g., Chao v.
Transocean Offshore, Inc., 276 F.3d 725, 729 (5th Cir. 2002);
Whitfield v. Pennington, 832 F.2d 909, 913 (5th Cir. 1987);
Waffenschmidt v. MacKay, 763 F.2d 711, 726 (5th Cir. 1985), cert.
denied, 474 U.S. 1056 (1986). But this disagreement is
irrelevant to our decision today, because abundant evidence
supports the district court’s finding that the City’s violation
of the consent decree was willful. See supra Part I.
26
605 F.2d 1348 (5th Cir. 1979).
16
prohibiting Northside from discriminatory housing practices.27 That
injunction was issued in 1971 as a result of an FHA suit brought by
the government.28 In 1975, the government initiated civil contempt
proceedings against Northside for violating the 1971 injunction and
sought “additional injunctive relief and also monetary damages for
nonparty victims of Northside’s discrimination.”29 Following a
bench trial, the district court held Northside in contempt and
issued a new, expanded injunction in which the court “specified
conditions of purging the contempt with monetary penalties and
ordered certain affirmative remedial measures....”30 The district
court, however, denied the government’s request for an award of
monetary relief for nonparty victims of Northside’s discriminatory
practices. This refusal was grounded in United States v.
Mitchell,31 in which we had held that FHA enforcement actions
brought by the government could not be used as vehicles for
obtaining compensatory relief for victims.32
27
Id. at 1350. Although the injunction extended to
Northside as well as its agents, employees, and brokers, for
simplicity’s sake, we refer here only to Northside (in the
singular).
28
The injunction is reprinted in United States v. Northside
Realty Assoc., Inc., 474 F.2d 1164, 1166 n.3 (5th Cir. 1973).
29
605 F.2d at 1350.
30
Id. at 1351.
31
580 F.2d 789 (5th Cir. 1978).
32
Id. at 793 (“As we read § 3613 the Attorney General is
empowered to seek only equitable remedies. To broaden this
17
On appeal, the government in Northside Realty argued that even
if Mitchell precluded the award of compensatory damages for
Northside’s nonparty victims, “compensatory damages for nonparty
discriminatees may nonetheless be awarded in [a] civil contempt
action.”33 Thus, the government was attempting to use civil
contempt proceedings indirectly to reach a result that we had
refused to authorize directly in Mitchell. We did not bite:
[W]e would be reluctant to allow this civil contempt
proceeding to be used, as the Government would have us
do, to enlarge upon the original injunctive action by
bringing in new parties with new issues in what would
most likely be a new proceeding. The relief sought by
the Government here cannot be characterized as merely an
incidental part of the main cause. It is an altogether
new and different matter.... [W]e now hold that here the
Government may not be awarded compensatory damages for
nonparties in a civil contempt action brought to enforce
a § 3613 injunction.34
Our central concern in Northside Realty was that “absent [an]
express congressional mandate,”35 it would be imprudent to allow
limited grant of authority to include the power to seek legal
damages would be a substantial departure from principles of
equity and statutory interpretation.”). See also United States
v. Long, 537 F.2d 1151, 1153-55 (4th Cir. 1975); United States v.
Rent-A-Homes Sys. of Ill., Inc., 602 F.2d 795, 797-98 (7th Cir.
1979); United States v. Orlofsky, 538 F. Supp. 450, 452-53
(S.D.N.Y. 1981).
33
605 F.3d at 1355-56.
34
Id. at 1357, 1358 (emphasis added). Before the FHA was
amended by the FHAA in 1988, § 3613 was the provision governing
enforcement actions by the attorney general. See 42 U.S.C. §
3613 (1980). Section 3613’s amended counterpart in the current
FHA is § 3614. See 42 U.S.C. § 3614 (2000).
35
Id. at 1358.
18
civil contempt proceedings to be used as a mechanism for achieving
a result that could not be obtained in an original government
enforcement action.36
ii. Expanded Enforcement Powers
under the FHAA
In 1988, though, Congress passed the FHAA, which substantially
amended the FHA and reshaped the landscape of fair housing actions
brought under it.37 In addition to extending federal fair housing
protection to handicapped persons and families with children, the
FHAA considerably enhanced the federal government’s enforcement
powers.38 Enabling the government to seek the full panoply of legal
and equitable remedies on behalf of nonparty victims of
discrimination was a chief objective of the FHAA.39 The FHAA now
36
To be sure, we recognized the limited application of our
holding to the FHA context. See id. at 1356 (“While we need not
foreclose altogether the possibility of third party compensatory
relief in civil contempt cases, we agree with the District Court
that compensatory damages for nonparties ought not to be granted
here as part of the Government’s remedy in a civil contempt
proceeding brought by the Attorney General to enforce a § 3613
injunction.”).
37
See supra note 1.
38
See generally Eugene R. Gaetke & Robert G. Schwemm,
Government Lawyers and Their Private “Clients” under the Fair
Housing Act, 65 GEO. WASH. L. REV. 329, 329-45 (1997).
39
See, e.g., id.; H.R. REP. NO. 100-711, at 16 (1988),
reprinted in 1988 U.S.C.C.A.N. 2173, 2177 (“Existing law has been
ineffective because it lacks an effective enforcement mechanism.
Private persons and fair housing organizations are burdened with
primary enforcement responsibility. Although private enforcement
has achieved some success, it is restricted by the limited
financial resources of litigants and the bar, and by
disincentives in the law itself. The Federal enforcement role is
19
permits the government to seek monetary damages and other remedies
on behalf of “persons aggrieved.”40 As explained by one federal
court,
Twenty years after the [original FHA] was passed,
Congress amended the act to include express language
providing for the award of monetary damages in housing
discrimination suits brought by the Attorney General. In
doing so, the legislature expressly extended the statute
to include the very provisions which the courts had
refused to imply from the language of the [original
FHA].41
By abrogating Mitchell,42 Congress vitiated the central concern that
governed our decision in Northside Realty —— namely, the absence of
specific congressional authority for the government to seek damages
and other remedies for nonparty victims of housing discrimination.
In contrast to what was permissible when Northside Realty was
decided, the “relief sought by the Government” now can “be
severely limited.”). Compare 42 U.S.C. § 3613 (1980) (original
FHA) with 42 U.S.C. §§ 3613(e), 3614 (2000) (current FHA as
amended by the FHAA).
40
42 U.S.C. § 3614(d)(1)(B) (emphasis added). See supra
notes 22-23 and accompanying text.
41
United States v. Rent America, Corp., 734 F. Supp. 474,
477 (S.D. Fla. 1990) (citing 42 U.S.C.A. § 3614(a), (d) (West
Supp. 1989)). See also id. at 476-77 (“It was clear under the
[original FHA] that Congress had intended to limit the power of
the Attorney General to the pursuit of equitable remedies only.
Accordingly, the enforcement of the [original FHA] by the
Attorney General was limited by its own terms.”) (citing Long,
537 F.2d at 1155; Mitchell, 580 F.2d at 793).
42
We believe that Long, 537 F.2d at 1153-55, Rent-A-Homes
Sys., 602 F.2d at 797-98, and Orlofsky, 538 F. Supp. at 452-53,
have also been abrogated by § 3614 of the FHAA.
20
characterized as merely an incidental part of the main cause.”43
No longer must it be “an altogether new and different matter.”44
As such, the City’s reliance on Northside Realty is misplaced, and
the district court’s order that the City pay damages to CA equal to
its expenses, costs, and attorney’s fees was proper.
III. CONCLUSION
The City’s contumacious conduct was wholly inexcusable. We,
therefore, affirm the district court’s awards in all respects.
AFFIRMED.
43
Northside Realty, 605 F.2d at 1357.
44
Id.
21