United States Court of Appeals

Fifth Circuit



## FILED

February 4, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 spe cial 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 f ashioned by the district court. Finding no merit in

any of the City’s contentions on appeal, we affirm the district1 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 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 antidis crimination 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 R1. 2 Most important for today’s purposes, the consent decreegroup 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 contains express remedies for non-compliance:

Upon any failure by the City, w hether 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 imp ose 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 a warding any damages, costs and/or

attorneys’ fees which may be occasioned by the City’s

violation of this Con sent Decree. Notwithstanding the

foregoing, the parti es 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 sou ght 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 typ e of

housing administered by CA. Mr. Peden also presented4

uncontradicted evid ence 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 Att orney 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, t he 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 t hat 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 th e 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 a5

handi capped group home can go into that location.

Therefore, Chip Reno next door to his home, someone could

purchase that particular hom e 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 Counc il 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

landown ers made their opposition known. At this hearing,

Councilmember Leslie McLemore cau tioned 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

t hat the police department, the fire department, thes e

departments are what they are because of consent decrees

which we systematically followed and were for c ed 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.6

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

c onducting 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 of4 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 attorney’s fees to CA.

In October 2002, the district court issued a comp rehensive

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 tota l 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 themselv es to

blame for the sanctions i mposed 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. S TANDARD OF R EVIEW

We review contempt orders a nd sanctions imposed under a

court’s inherent powers for an abuse of discretion. 4 We review the

district court’s underlying finding s of fact for clear error and5 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 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. R EMEDIES FOR C IVIL C ONTEMPT

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 co ntempt.

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 aw ard

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 actions8 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 to enforce the FHAA, gives district courts the discretion to “allow

the prevailing party, other than the Unit ed 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 selfevident 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’ fe es 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

d esire 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. 1011 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 The City struck a deal with the government and bound itself to an

enforceable judicial orde r. 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

dis trict 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 depend s on the circumstances of the case.

“I f the sanctions imposed are s ubstantial in amount, type, or

effect, appellate review o f such awards will be inherently more

rigorous; such sanct ions must be quantifiable with some

precision.” 11 We do not consider the total sanctions awarded11

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 substantia l 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 re sources. 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

considera tions 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 distri ct 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 hourly12 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 rate in the local legal community as a benchmark for determining

the amount of attorney’s fees to be impos ed. This conclusion is

supported by the Su preme Court’s ruling in B lum 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 pr evailing 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

calcu lated 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 1116 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 context. 1 6 In the absence of a more specific governing rule or

agreement, 17 the same standard for assessing attorne y’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 The20 42 U.S.C. § 3614(e).

14

government relied on the EAJA only to illustrate that its request

for $125 per hour was rea sonable. 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 Cos ts,

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 justificati ons 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

proceedi ngs 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 as21 See 42 U.S.C. § 3613(c).

22 In United States v. Balistrieri , the Seventh Circuit held

that “§ 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 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 i ntervention 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 the25 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 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

d efendant.” 25 In response, the City invokes our decision in

Northside Realty Assoc., Inc. v. United States 26 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 N orthside Real t y

cannot carry the day.

In that case, the Appellant, Northside Realty Associates, Inc.

(“Northside”), was held in civil contempt of a federal injunction27 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 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

c onditions of purging the contempt with monetary penalties an d

ordered certain affirmative remedial measures....” 30 The district

court, however, d enied the government’s request for an award of

monetary relief for nonparty victims of Northside’s discriminatory

practices. This refusal was grounded in U nited 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. 32limited 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 On appeal, the government in Northside Realty argued that even

if Mitchell precluded the award of co mpensatory damages for

Northside’s nonparty victims, “compensatory damages for nonparty

discriminate es may nonetheless be awarded in [a] civil contempt

action.” 33 Thus, the government was attempting to use civil

contempt p roceedings 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 u sed, as the Government would have us

do, to enlarge upon the original injunctive act ion by

b ringing in new parties with new issues in what would

most likely be a new proceeding. T he 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 N orthside Realty was that “absent [an]

express con gressional mandate,” 3 5 it would be imprudent to allow36 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 G EO

. W ASH

. L. R EV . 329, 329-45 (1997).

39 See

, e.g.

, id. ; H.R. R EP

. N O . 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 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 vi ctims of

discrimination was a chief objective o f the FHAA. 3 9 The FHAA nowseverely 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 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 [origi nal FHA] was passed,

Congress amended the act to include express language

providing for the award o f 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 perm issible when N orthside Realty was

decided, the “relief sought by the Government” now can “be43 Northside Realty , 605 F.2d at 1357.

44 Id.

21 characterized as merely an incidental part of the main cause.” 43

No longer must it be “an altogether new a nd different matter.” 4 4

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.