1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-15-1995

Harris v City of Phila

Precedential or Non-Precedential:

Docket 94-1286

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"Harris v City of Phila" (1995). 1995 Decisions. Paper 49.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/49
 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 

 No. 94-1286 

 

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 HON. EDWARD G. RENDELL, in his official capacity as 

Mayor of the City of Philadelphia, 

 Appellants

 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. No. 82-cv-1847) 

 

Argued September 14, 1994 

Before: SLOVITER, Chief Judge, MANSMANN and 

ALITO, Circuit Judges

(Filed February 15, l995 ) 

 
John W. Morris 

Philadelphia, PA 19102 

Mark A. Aronchick 

Gary A. Rosen (Argued) 

Randy Karafin Hubert 

Hangley Connolly Epstein 

 Chicco Foxman & Ewing 

Philadelphia, PA 19102 

 Attorneys for Appellants 

David Richman (Argued) 

Philip H. Lebowitz 

Sarah E. Ricks 

Pepper, Hamilton & Scheetz 

Philadelphia, PA 19103 

 Attorneys for Appellees 

 OPINION OF THE COURT

SLOVITER, Chief Judge. 

 In this appeal, the City of Philadelphia and its 

responsible officials (jointly City or Philadelphia) appeal from 

the order of the district court dated February 16, 1994 denying 

reconsideration of a $125,000 contempt fine imposed on them on 

June 16, 1993. That fine was levied because the City defendants 

failed to comply with the court's earlier order requiring the 

City to maintain a 90 percent occupancy rate in a residential 

drug treatment facility. 

 The City and plaintiffs in this case, a class of 

inmates in the Philadelphia prison system who filed suit in 1982 

claiming unconstitutional conditions of confinement, entered into 

a consent decree in 1986 (1986 Consent Decree). That decree was 

partially superseded by a stipulation and agreement approved by 
the district court in 1991 (1991 Consent Decree), see Harris v. 

Reeves, 761 F. Supp. 382 (E.D. Pa. 1991), under which the City 

was obliged to provide a 250-bed substance abuse and treatment 

facility. This particular appeal arises out of that undertaking. 

 Today we also file two other opinions disposing of 

several related appeals by the City. The most detailed 

recapitulation of the underlying facts appears in Harris v. City 

of Philadelphia, Nos. 93-1997, 93-2116, & 93-2117 (3d Cir. 

_______, 1995) (Harris V), an appeal from the imposition of 

stipulated penalties in the amount of $584,000 and the dismissal 

of the City's Motion to Modify the Consent Decree as a penalty 

for the City's lengthy delay in submitting a Facilities Audit and 

Ten-Year Plan. We file as well an opinion in Harris v. City of 

Philadelphia, No. 93-1988 (3d Cir. ________, 1995) (Harris VII) 

(an appeal from the adjudication of contempt and imposition of 

fines arising out of designation of bailable pretrial detainees 

for release). An earlier opinion was filed from a related appeal 

argued the same day. See Harris v. City of Philadelphia, 35 F.3d 

840 (3d Cir. 1994) (Harris IV). This opinion will set forth only 

those facts necessary to decide the issues presented in this 

appeal. 

I. 

 Facts and Procedural History

 Paragraph 16 of the 1991 Consent Decree provides, in 

relevant part: 

 Not later than April 3, 1991, defendants shall contract 

for and provide a minimum of 250 beds in a program or 

programs that provide alcohol and substance abuse 
rehabilitation, training and other support services. . 

. . The beds and services provided pursuant to this 

Paragraph 16 shall be reserved for persons who would 

otherwise be committed to or retained in the custody of 

the Philadelphia Prisons. Defendants shall have 

discretion in selecting the program provider(s), but 

may not reduce or discontinue the provision of such 

programs without Court approval. 

App. at 115-16. 

 It was understood that this program for alcohol and 

substance abuse rehabilitation was designed for 250 persons 

already in or sentenced to the Philadelphia prison system as an 

alternative to incarceration in existing facilities. To comply 

with paragraph 16, the City contracted with the Greater 

Philadelphia Center for Community Corrections (GPCCC) to provide 

the required 250 beds in a single facility.1

 However, by June 13, 1991, the GPCCC facility was still 

not operational because necessary renovations had not been 

completed. At a status hearing on that date, the district court 

announced its intention to enter an order "that the 250 beds be 

available by June 30th. And that the City be fined for any day 

that the beds are available and it's not filled to 90 percent of 

capacity." Supp. App. at 969. Significantly, the City 

Solicitor, who was present, did not object to the proposed order 

but merely requested that the proposed date be extended. The 

relevant colloquy was as follows: 

 

 1 The GPCCC facility has since changed its name to the John 

Czmar Treatment Center. For convenience, we will continue to 

refer to it as the GPCCC facility. 
 MS. LILLIE: [W]e could get to capacity in about 30 

days, to 90 percent. 

 THE COURT: Good. 

 MS. LILLIE: And I would respectfully request that 

the point at which you are going to 

impose fines would be 30 days beyond 

today as opposed to June 30th. 

* * * 

 THE COURT: -- all right. . . . 

 MS. LILLIE: Thank you, your Honor. 

Supp. App. at 974. 

 As a result, on July 2, 1991 the district court 

entered an order which provided, in relevant part: 

 The 250 treatment beds that the City agreed to provide 

by April 3, 1991, pursuant to Paragraph 16 . . ., shall 

be available and the facility filled to at least 90% 

(225 residents) of capacity by July 15, 1991. 

App. at 199 (referred to as the July 2, 1991 Order). The order 

also provided that the City must pay a fine of $500.00 per day 

for every day after July 15, 1991 that 250 beds were not 

available or at least 90 percent occupied. App. at 199-200. The 

City neither objected to nor appealed from the district court's 

July 2, 1991 Order. 

 On October 10, 1991, following a hearing, the district 

court held the City in contempt, imposing $44,000 in fines for 

the City's "continued failure" to fill the GPCCC facility to 90 

percent of capacity. App. at 201. The City paid the fines and 

did not appeal that order. On the same day, the district court 
vacated the July 2, 1991 Order to a date certain2 and suspended 

further accrual of fines until November 25, 1991 to allow the 

parties to develop a protocol for sending eligible inmates to the 

GPCCC facility at the time of sentencing. Because the protocol 

had not been completed as planned, the question of further fines 

did not arise at the November 25, 1991 hearing. 

 In the following months, the GPCCC facility population 

fluctuated but it was never again 225 after April 15, 1992. 

Supp. App. at 624 (Fortieth Report of Special Master). The 

special master repeatedly found that the City remained out of 

compliance with the July 2, 1991 Order. On July 17, 1992, after 

reviewing the special master's Thirty-Seventh Report, the 

district court issued a Rule to Show Cause ordering a hearing to 

determine whether the City should be fined an additional $37,000 

for 74 days during which the GPCCC facility was not 90 percent 

occupied. Supp. App. at 1139. After the hearing, the court 

deferred until the next scheduled compliance hearing a decision 

on the amount of fines owed by the City, based on the City's 

representation that the GPCCC facility would begin accepting 

pretrial detainees to increase the occupancy level. Supp. App. 

at 1142 (Order of August 4, 1992). 

 The assignment of pretrial detainees to the GPCCC 

facility failed to raise its population above 225, and on October 

 

 

2 The vacation was until further order of the court "but no 

longer than the next status hearing," App. at 202, which was held 

on November 25, 1991. Such status hearings were held 

periodically. 
16, 1992, the district court ordered the special master and an 

independent expert to evaluate the GPCCC program and recommend 

changes to make the program more effective. During the 

evaluation process, the court again deferred the imposition of 

fines. Supp. App. at 625 (Fortieth Report of Special Master). 

Meanwhile, conditions at the facility deteriorated to the point 

that the Philadelphia District Attorney refused to request 

assignment of inmates to it and state court judges discontinued 

making such assignments. See Supp. App. at 625-27 (Fortieth 

Report). 

 As the City acknowledged in its motion for 

reconsideration, there were "repeated reports of drug use, high 

walkaway rates, and acts of violence in the [GPCCC] facility." 

App. at 858. In addition, residents who violated facility rules 

and tested positive for drug use were discharged without 

sanctions. App. at 858-59. As a result, by May 19, 1993, the 

GPCCC facility's population declined to 34. Supp. App. at 626-27 

(Fortieth Report). 

 By April 1993, the City expressed its intention to 

issue a Request for Proposal (RFP) seeking a facility to replace 

the GPCCC facility, and in May 1993 the City stopped making 

payments to GPCCC. Supp. App. at 625-26. As of May 19, 1993, 

the population of the GPCCC facility had been below 90 percent of 

capacity for 399 consecutive days, creating a potential liability 

by the City of $199,500 in fines. Supp. App. at 627. 

 As a result of the City's continued noncompliance with 

the July 2, 1991 Order, and after a hearing on June 11, 1993, the 
district court fined the City $125,000, allowing a credit for 

time during which the special master and independent expert were 

evaluating the facility. In its order, dated June 16, 1993, the 

district court tolled the further accrual of fines pending 

submission of the RFP by June 30, 1993. 

 The City filed a motion for reconsideration of the 

order imposing the $125,000 fine as a sanction, which the 

district court denied on February 16, 1994. In its opinion, the 

district court held that the City had waived the opportunity to 

argue that the July 2, 1991 Order exceeded the scope of the 1991 

Consent Decree, and that even if the 1991 Consent Decree did not 

support that order the City had still failed to comply with 

paragraph 16 because the GPCCC facility provided inadequate 

treatment services. 

 The City now appeals from the district court's order 

denying reconsideration. We have appellate jurisdiction under 28 

U.S.C. § 1291. See Inmates of Allegheny County Jail v. Wecht, 

874 F.2d 147, 152 (3d Cir.), vacated on other grounds, 493 U.S. 

948 (1989); Stone v. City and County of San Francisco, 968 F.2d 

850, 854 (9th Cir. 1992), cert. denied, 113 S. Ct. 1050 (1993). 
II. 

 Discussion

 The City raises four arguments on appeal. First, it 

argues that the Order of July 2, 1991 imposing the 90 percent 

occupancy requirement exceeded the scope of the Consent Decree. 

Second, it contends that the imposition of contempt sanctions was 

without adequate due process notice or hearing. Third, the City 

claims that it was impossible for it to comply with the July 2, 

1991 Order because it lacked power to compel state court judges 

to assign inmates to the GPCCC facility. Finally, the City 

argues that plaintiffs have unclean hands and should be barred 

from any benefit from a contempt sanction. 

A. 

 According to the City, the district court impermissibly 

expanded the City's obligations beyond the "four corners" of the 

1991 Consent Decree by requiring the City to ensure 90 percent 

occupancy of GPCCC. Normally, "[f]or the purposes of 

enforcement, a consent judgment is to be interpreted as a 

contract, to which the governing rules of contract interpretation 

apply." Harley-Davidson, Inc. v. Morris, 19 F.3d 142, 148 (3d 

Cir. 1994). The obligations imposed by a consent decree must be 

"discerned within its four corners, and not by reference to what 

might satisfy the purposes of one of the parties to it." United 

States v. Armour & Co., 402 U.S. 673, 682 (1971). As this court 

has said, "[t]he agreement memorializes the bargained for 

positions of the parties and should be strictly construed to 

preserve those . . . positions." Halderman v. Pennhurst State 
Sch. and Hosp., 901 F.2d 311, 319 (3d Cir.), cert. denied, 498 

U.S. 850 (1990). 

 However, we have no occasion on this appeal to decide 

whether the July 2, 1991 Order exceeded the scope of the 1991 

Consent Decree, because the validity of that order is not open to 

collateral attack in a contempt proceeding for violating it. See

Northeast Women's Center, Inc. v. McMonagle, 939 F.2d 57, 68 (3d 

Cir. 1991); Roe v. Operation Rescue, 919 F.2d 857, 871 (3d Cir. 

1990); see also Walker v. City of Birmingham, 388 U.S. 307, 313-

21 (1967). As we have stated, "'[i]f a person to whom a judge 

directs an order believes that order is incorrect the remedy is 

to appeal, but, absent a stay, he must comply promptly with the 

order pending appeal.'" United States v. Stine, 646 F.2d 839, 

845 (3d Cir. 1981) (quoting Maness v. Meyers, 419 U.S. 449, 458 

(1975)). 

 It is true, as the City notes, that we will review the 

validity of the underlying order in a contempt proceeding when 

the underlying order was not previously appealable and compliance 

would result in irreparable harm. See United States v. Pearce, 

792 F.2d 397, 400 (3d Cir. 1986) (citing Maness, 419 U.S. at 460 

and United States v. Ryan, 402 U.S. 530, 532-33 (1971)). 

However, even assuming that compliance would have resulted in 

irreparable harm, that exception is inapplicable here because the 

July 2, 1991 Order was previously appealable as an injunction 

under 28 U.S.C. § 1292(a)(1). See Harris IV, 35 F.3d at 844 

(asserting appellate jurisdiction under section 1292(a)(1) over 

appeal of orders related to consent decree which imposed 
affirmative duties on City); see also Sansom Committee v. Lynn, 

735 F.2d 1552, 1553 (3d Cir.) (order extending a compliance 

deadline in a consent decree by 30 days was "in the nature of a 

preliminary injunction" and appealable under section 1292(a)(1)), 

cert. denied, 469 U.S. 1017 (1984). 

 The City claims that the Order of July 2, 1991 was not 

appealable because it provided that fines would be imposed in the 

future only if certain conditions were not fulfilled. This 

argument confuses appeal from final orders with appeal from 

injunctions. Generally, a party may not appeal from an otherwise 

final order awarding damages or fines until the damages or fines 

have been calculated, unless calculation would be a purely 

ministerial act. See Apex Fountain Sales, Inc. v. Kleinfeld, 27 

F.3d 931, 934-35 (3d Cir. 1994). But the July 2, 1991 Order 

imposed an immediate duty on the City to open the GPCCC facility 

and fill it to 90 percent of capacity by July 15, 1991. The 

July 2, 1991 order thus satisfied the requirements of section 

1292(a)(1) because it "grant[ed] relief [that] could be enforced 

pendente lite by contempt if necessary." Cohen v. Board of 

Trustees of Univ. of Medicine, 867 F.2d 1455, 1465 (3d Cir. 1989) 

(in banc). It was therefore appealable when entered.3

 

 

3 Because we hold the order was appealable as an 

injunction, we need not decide if it was also appealable as a 

final order under 28 U.S.C. § 1291, see United States v. 

Wheeling-Pittsburgh Steel Corp., 818 F.2d 1077, 1082 (3d Cir. 

1987) (order modifying consent decree by indefinitely extending 

compliance deadline appealable as final order). 
 The City argues that it is not "incumbent upon [it] to 

file a Notice of Appeal from virtually every interlocutory order 

entered . . . to preserve its rights to appellate review," and 

that it may "wait to see which orders, in the ebb and flow of 

events, actually cause serious prejudice to the City and merit 

the attention of the Court of Appeals." Reply Brief for City at 

4. We simply cannot accept the City's argument that it can pick 

and choose when to appeal from the entry of an injunction, an 

argument that ignores the mandatory nature of the time limits for 

filing a notice of appeal. If a party could obtain appellate 

review of court orders simply by disobeying them at any time, the 

time limits for appeal mandated by Fed. R. App. P. 4(a) "would 

easily be set to naught," thus destroying "the finality of 

judgments of both appellate and trial courts." Halderman v. 

Pennhurst State Sch. and Hosp., 673 F.2d 628, 637 (3d Cir. 1982) 

(in banc), cert. denied, 465 U.S. 1038 (1984); see also United 

States v. Millstone Enterprises, Inc., 864 F.2d 21, 23-24 (3d 

Cir. 1988). Having failed to challenge the July 2, 1991 Order at 

the first available opportunity, the City may not now attack its 

validity. 

B. 

 The City next argues that the district court imposed 

the contempt sanction without affording it adequate notice or 

hearing. Our standard of review over this question of law is 

plenary. United States v. Barnhart, 980 F.2d 219, 222 (3d Cir. 

1992). See also Epstein Family Partnership v. Kmart Corp., 13 

F.3d 762, 765-66 (3d Cir. 1994). 
 The fundamental requirements of due process are notice 

and a meaningful opportunity to be heard, but the "concept is 

flexible, calling for procedural protection as dictated by the 

particular circumstance." Kahn v. United States, 753 F.2d 1208, 

1218 (3d Cir. 1985). In a contempt case, the hearing must 

provide an opportunity to explain why contempt sanctions should 

not be imposed and create a record to facilitate appellate 

review. Newton v. A.C. & S., Inc., 918 F.2d 1121, 1127 (3d Cir. 

1990). 

 The City raised no due process arguments in the 

district court, either at the June 11, 1993 hearing or in its 

motion for reconsideration. This court "generally refuses to 

consider issues raised for the first time on appeal." United 

States v. Frost, 999 F.2d 737, 744 n.4 (3d Cir.), cert. denied, 

114 S. Ct. 573 (1993); see also Harris IV, 35 F.3d at 845. The 

City has put forward no reason why we should disregard our strong 

policy in favor of allowing district courts to decide such issues 

in the first instance when there was no obstacle to their review 

in the district court, and thus the City's waiver of its due 

process argument is a sufficient basis to reject its contention. 

 Alternatively, we hold that the City's notice argument 

fails on its merits. Having been held in contempt on 

October 10, 1991 for failure to comply with the 90 percent 

occupancy requirement, the City cannot now complain that it was 

unaware that its further failure to comply could be grounds for 

additional contempt sanctions. Moreover, the district court 

issued a Rule to Show Cause order on July 17, 1992, explicitly 
requiring the City to show cause why it should not be held in 

contempt for noncompliance with the July 2, 1991 Order. In its 

order of August 4, 1992, the district court deferred a 

determination of the amount of fines to be imposed, based on the 

City's prediction that diversion of pretrial detainees to GPCCC 

would satisfy the 90 percent requirement, but the court's 

determination that the City would be fined for its noncompliance 

was not vacated. 

 In the circumstances, we find that the district court 

afforded ample notice to the City. The October 10, 1991 contempt 

order and the July 17, 1992 Rule to Show Cause notified the City 

that it could be held in contempt, and the August 4, 1992 order 

put the question of the amount of fines on the table at 

subsequent status hearings. Three weeks before the June 11, 1993 

hearing, the special master's report informed the City that it 

remained out of compliance with the 90 percent requirement. At 

the hearing itself, the district court told the City that the 

City appeared to be in continuing violation of the July 2, 1991 

Order. App. at 835. 

 In light of the ample notice previously provided and 

the continuing nature of the City's violation, due process did 

not require the district court to issue a further Rule to Show 

Cause or other formal written notice before holding the City in 

contempt in its order of June 16, 1993. Cf. American Fletcher 

Mortgage Co. v. Bass, 688 F.2d 513, 519 (7th Cir. 1982) (in civil 

contempt case, oral notice in open court, without written notice 

or service, satisfies due process). 
 The City also faults the district court for failing to 

hold an evidentiary hearing before holding it in contempt. At the 

hearing on June 11, 1993, the district court stated its 

inclination to impose fines for noncompliance with the July 2, 

1991 Order, but told the City, "I'll hear anything you want to 

say." App. at 835. 

 Without seeking to call witnesses or requesting that 

the hearing be postponed until another time, the City then 

proceeded to present its defense to contempt. That defense 

consisted primarily of the argument that compliance was 

impossible because it could not compel the state courts to 

approve release of inmates to the GPCCC facility, as well as an 

attempt to shift blame to GPCCC for its failure to cooperate with 

the City. The City noted that it hoped to issue an RFP for 

replacement programs by the end of the month and to have the 

programs in place within 30 to 60 days after that, and it argued 

that "fining the taxpayers of the City of Philadelphia . . . is 

not an appropriate sanction, because what happened here was in 

very large part beyond the ability of the City of Philadelphia to 

address." App. at 836-37. 

 On this record, we find that the district court 

afforded the City a sufficient hearing before finding it in 

contempt. The City had ample opportunity to "explain the conduct 

deemed deficient," Newton, 918 F.2d at 1127, and indeed presented 
a vigorous defense. An evidentiary hearing would have added 

nothing of consequence to the record.4 

 The problems at the GPCCC facility that caused the 

District Attorney to stop recommending assignment there and the 

state courts to deny petitions for such assignments are well 

documented. The City does not dispute that the GPCCC facility's 

population fell below 90 percent of capacity during the relevant 

time period, and effectively concedes that "there were no 

disputed issues of fact related to the July 2, 1991 Order." 

Reply Brief for City at 11. It argues only that it cannot be 

held liable for "judicial resistance to paroling inmates to the 

facility." Id. Because the relevant facts are undisputed, the 

only question remaining is whether those facts justified a 

finding of contempt. In such a case, no evidentiary hearing is 

necessary. See Alexander v. Chicago Park Dist., 927 F.2d 1014, 

1025 (7th Cir. 1991) (due process does not require evidentiary 

 

 

4 In its brief, the City pounces on the statement by the 

district court that "I don't think that this is an appropriate 

time to hear the allegations or decide wherein the merit lies." 

App. at 844. That statement concerned the separate issue of 

responsibility between the City and its vendor, GPCCC. 

 On June 30, 1993, the district court proceeded to hold 

a limited hearing on GPCCC's claims. Although the City faults 

the district court for relying on evidence from that hearing, it 

is undisputed that the state judges declined to assign inmates to 

GPCCC because of concern about the program. GPCCC officials 

testified that "severe underfunding" from the City prevented them 

from providing adequate services. Addendum to Brief for City at 

A-8. This testimony was cumulative of similar evidence appearing 

in a City Department of Public Health evaluation of the GPCCC 

facility attached as an exhibit to the City's motion for 

reconsideration. See App. at 898. 
hearing prior to imposition of contempt sanctions where relevant 

facts not in dispute), cert. denied, 112 S. Ct. 1262 (1992). 

 The district court held that, in the alternative, the 

City could be held in contempt for violating paragraph 16 of the 

1991 Consent Decree, because the GPCCC facility did not provide 

adequate "alcohol and substance abuse rehabilitation, training 

and other support services" as required by paragraph 16. We need 

not decide whether that determination should have been preceded 

by a hearing notwithstanding the City's concession that the GPCCC 

facility was in "undisputed decline," had "inadequate security," 

was beset with "rampant drug use," and had proved "inadequate." 

See Brief for City at 28, 13, 16. Instead, we rely on the 

district court's finding that the City was in violation of the 

July 2, 1991 Order, a finding made after according the City its 

full due process rights. 

C. 

 Turning to the merits, we review a finding of contempt 

for abuse of discretion, reversing only for an error of law or 

clearly erroneous finding of fact. United States v. Sarbello, 

985 F.2d 716, 727 (3d Cir. 1993).5 The City's defense is limited 

 

 

5 The City contends that our standard of review over the 

initial finding of contempt is plenary, citing American Greetings 

Corp. v. Dan Dee Imports, Inc., 807 F.2d 1136, 1140 (3d Cir. 

1986). As we explain in Harris v. City of Philadelphia, Nos. 93-

1997, 93-2116, & 93-2117 (3d Cir. ____________, 1995) (slip op. 

at __), American Greetings does not support the City's argument. 

Briefly, in American Greetings, we reversed a finding of contempt 

that was based on a preliminary injunction that did not provide 

sufficient notice of the conduct it prohibited. See 807 F.2d at 

1147-48. Whether the notice provided conformed to legal 

requirements is a question of law over which we retain plenary 

review. American Greetings thus holds only that we exercise 
to whether it was possible to comply with the order. See Wecht, 

874 F.2d at 152. A finding of contempt must rest on clear and 

convincing evidence. Robin Woods Inc. v. Woods, 28 F.3d 396, 399 

(3d Cir. 1994). The City may escape contempt by showing that it 

could not possibly comply with the court's order despite making 

all reasonable efforts to do so. Citronelle-Mobile Gathering, 

Inc. v. Watkins, 943 F.2d 1297, 1301 (11th Cir. 1991) (citing 

Ryan, 402 U.S. at 534). 

 The City claims that it has a complete defense to 

contempt because under 61 Pa. Cons. Stat. Ann. § 785 it may not 

transfer pretrial detainees without the consent of the sentencing 

court. It argues that it must rely on parole petitions to 

individual state courts to fill a drug treatment facility with 

prison inmates, and these courts are now refusing such petitions. 

Therefore, it claims that the district court impermissibly held 

it in contempt as a "hostage" to the actions of third parties 

beyond its control. See United States v. International Bhd. of 

Teamsters, 899 F.2d 143, 147 (2d Cir. 1990) (defendant cannot be 

held in contempt for actions of third parties when defendant has 

no legal power to compel them to act otherwise); Newman v. 

Graddick, 740 F.2d 1513, 1528 (11th Cir. 1984) (defendant cannot 

be held in contempt for failing to prompt government officials to 

 

plenary review over conclusions of law underlying a finding of 

contempt, a conclusion entirely consistent with Sarbello. 

Nothing in American Greetings suggests that we exercise plenary 

review over the district court's findings of fact or ultimate 

finding of contempt except to the extent that the finding of 

contempt rests on an erroneous conclusion of law. 
correct violation of court order when defendant has no power to 

control actions of officials). 

 Of course, the City cannot directly compel state courts 

to assign inmates to a treatment facility. But the City's 

undertaking to establish a treatment facility pursuant to the 

1991 Consent Decree imposed on it an obligation to use all 

reasonable efforts to provide a treatment facility to which state 

courts could be expected to assign inmates. That would 

necessarily be one where residents could not routinely circumvent 

security, use drugs, attack each other in the building, or walk 

away at will. This obligation includes contracting with an 

appropriate facility, funding it at the level necessary to 

provide adequate security and treatment, and closely monitoring 

performance under the contract. 

 The evidence from the City's own Department of Public 

Health as well as Donald Stoughton, the court's independent 

expert, showed that the GPCCC facility was an inappropriate 

facility from the outset. According to the Department, GPCCC 

initially told the City it could handle only 125 residents, but 

the City insisted that it take 250, though 250 residents exceeded 

the number that the Department considered appropriate for the 

site. App. at 885, 895. Moreover, Stoughton noted the lack of 

"perimeter security" and the "unrestricted and easy access to and 

from the public streets," and concluded that the GPCCC facility 

is "not designed, equipped, staffed or operated as a secure 

detention facility." App. at 902-03. 
 There is also evidence that the City underfunded GPCCC 

and failed to develop performance standards or to monitor GPCCC's 

performance under the contract. The Department of Public Health 

reported that GPCCC was not funded at a level "in line with other 

residential programs in the area." App. at 898. Stoughton found 

a "lack of measurable performance standards and program 

criteria." App. at 903. He concluded by stating, "It is 

essential to develop and maintain a performance monitoring 

process to assure that the city is getting what it is paying 

for." Id. Finally, both Stoughton and the Department of Public 

Health noted the inadequate number of therapists available and 

questioned whether GPCCC was capable of providing effective 

substance abuse treatment as currently staffed. 

 Because the problems at the GPCCC facility stemmed at 

least partly from the City's own acts and omissions, the City 

cannot demonstrate that it exhausted all reasonable efforts to 

comply with the 90 percent occupancy requirement. Instead, the 

City helped create the situation leading the state court judges 

to refuse to assign inmates there, and then it failed to explore 

alternative programs until the middle of 1993, when it finally 

issued a new RFP. 

 In such circumstances, the City has no viable defense 

in its argument that it lacked power to compel the assignment of 

inmates. In Glover v. Johnson, 934 F.2d 703 (6th Cir. 1991), the 

court was confronted with an analogous situation and refused to 

recognize a defense of impossibility. In that case, the district 

court had directed Michigan prison officials to provide equal 
educational opportunities to male and female prison inmates, 

after finding the officials guilty of equal protection 

violations. On appeal from the district court's contempt order 

and sanctions imposed because defendants had failed to contract 

with local colleges to provide degree programs in women's 

prisons, defendants contended that they were "unable to comply 

with the court's orders . . . because the orders required the 

cooperation of colleges and educators outside their control." 

Id. at 708. Defendants argued that because the legislature 

failed to appropriate sufficient funds, colleges did not find it 

"financially attractive" to offer degree programs in women's 

prisons. Id. at 711. 

 The appeals court upheld the finding of contempt 

because the record was "devoid of any evidence" that defendants 

exhausted all reasonable efforts to design degree programs for 

female inmates that would be financially attractive. Id. 

Defendants neither provided support nor sought funding for 

education of female inmates, though they sought funding for male 

inmates. Id.

 Like the Sixth Circuit in Glover, we find the City's 

argument disingenuous. Because the City directly contributed to 

the state courts' loss of confidence in GPCCC, it cannot now 

complain that its hands were tied by the state courts' refusal to 

cooperate. We cannot therefore say that the district court 

abused its discretion in holding the City in contempt. 

D. 
 Lastly, the City claims that plaintiffs should not 

benefit from the contempt order because of their unclean hands. 

Specifically, the City argues that by walking away from the GPCCC 

facility, certain inmates have demonstrated sufficient "fraud, 

unconscionability, or bad faith" to bar enforcement of the July 

2, 1991 Order. See S & R Corp. v. Jiffy Lube Int'l, Inc., 968 

F.2d 371, 377 n.7 (3d Cir. 1992). Though the district court did 

not address the unclean hands issue, we will resolve it on appeal 

in the interests of judicial economy and because the unclean 

hands doctrine ensures that courts protect "'their own integrity' 

and . . . avoid[] becoming 'the abettor of iniquity.'" Northeast 

Women's Center v. McMonagle, 868 F.2d 1342, 1354 (3d Cir.) 

(quoting Monsanto Co. v. Rohm & Haas Co., 456 F.2d 592, 598 (3d 

Cir.), cert. denied, 407 U.S. 934 (1972)), cert. denied, 493 U.S. 

901 (1989). 

 We are most reluctant to allow the misconduct of one or 

more class members to adversely affect the position of a class of 

plaintiffs.6 The members of the plaintiff class who walked away 

from the GPCCC facility will not necessarily benefit from their 

allegedly inequitable conduct by our affirmance of the order at 

issue. Therefore, even if the isolated acts of certain members 

 

 

6 This case is unlike Gaudiosi v. Mellon, 269 F.2d 873 (3d 

Cir.), cert. denied, 361 U.S. 902 (1959), where we affirmed the 

district court's dismissal of a suit arising out of a proxy 

contest because the plaintiff who had deliberately attempted to 

intimidate stockholders to vote for his election as director 

would have become a director despite his unclean hands if the 

claims of his co-plaintiffs, who were not implicated in his 

conduct, were not also dismissed. Id. at 882. 
of the plaintiff class reflect fraud, unconscionability, or bad 

faith, those acts do not justify denying relief to the plaintiff 

class as a whole, which has not been shown to have acted in bad 

faith. 

III. 

 Conclusion

 For the foregoing reasons, we will affirm the district 

court's order of February 16, 1994 denying the City's motion to 

reconsider the order of June 16, 1993 imposing fines of $125,000 

on the City as a sanction for contempt for its violation of the 

district court's order of July 2, 1991, which the City had not 

previously appealed.