which established a monitoring system for Defendant's compliance.
Plaintiffs sought a second contempt order in 1982 as a result of Defendants' failure to comply with the 1974 and 1978 orders. The Court held Defendants in contempt on July 24, 1985. It is for the work associated with this second contempt proceeding for which Plaintiffs seek attorneys fees and costs.
Plaintiffs believe they are entitled to attorneys fees and costs under three separate theories. The first is that Defendants acted in bad faith throughout this litigation, willfully failing to comply with this Court's orders. The second is that because Plaintiffs could have brought suit under 42 U.S.C. § 1983, they are now entitled to fees pursuant to 42 U.S.C. § 1988. Finally, Plaintiffs seek fees under Rule 11 as sanctions against Defendants' alleged false presentation of the record in their Opposition to the Plaintiffs' Motion for an Order Adjudging Defendants in Contempt.
The Court shall grant Plaintiffs' Motion based on a fourth theory; that in a case involving civil contempt, there need be no finding of willful contempt for a Court to award Attorneys' fees and costs to the prevailing party. Although the Court of Appeals for the District of Columbia Circuit has not addressed this question, the Fifth, Sixth, Seventh and Ninth Circuits have all allowed fee awards in civil contempt proceedings in which the contempt was not found to be willful.
Cook v. Ochsner Found. Hosp., 559 F.2d 270 (5th Cir. 1977); TWM Mfg. Co. v. Dura Corp., 722 F.2d 1261 (6th Cir. 1983); Commodity Futures Trading Comm'n v. Premex, Inc., 655 F.2d 779 (7th Cir. 1981); Perry v. O'Donnell, 759 F.2d 702 (9th Cir. 1985).
An analysis of the issue of when it is appropriate for a court to award attorneys' fees and costs must begin with Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975). In that case, the Court recognized that there are certain well-established exceptions to the general rule that in the absence of a statute or enforceable contract providing otherwise, each litigant pays his or her own attorneys' fees. One of these exceptions is that "a court may assess attorneys' fees for the 'willful disobedience of a court order . . . as part of the fine to be levied on the defendant.'" Id. at 258 (quoting Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718, 87 S. Ct. 1404, 18 L. Ed. 2d 475 (1967)) (citing Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 426-28, 43 S. Ct. 458, 67 L. Ed. 719 (1923)). Another is that fees may be awarded to the prevailing party "when the losing party has 'acted in bad faith, vexatiously, wantonly, or for oppressive reasons.'" Alyeska at 258-259 (citations omitted).
The Court finds persuasive the reasoning of the courts cited above which hold that while Alyeska specifically discusses willful disobedience of a court order, it does not prevent a trial court from granting a fee petition in a civil case where a party's contempt is not willful. Perry v. O'Donnell, 759 F.2d 702 (9th Cir. 1985) notes that Alyeska was not a contempt case so there was no need in that action for the Court to discuss whether a finding of willfulness is a prerequisite to the award of attorneys' fees in a civil contempt proceeding. Id. at 705. Additionally, the Court in Perry observed that unlike criminal contempt, civil contempt may be established even though the failure to comply was unintentional. Id. Finally, the Court decided that "an inflexible rule requiring the denial of fees when civil contempt is not 'willful' would prevent the party proving the contempt from being fully compensated in many cases." Id. The Court concluded that it would analyze each contempt case individually to decide whether an award of fees is an appropriate remedial measure. Id.
The Court in Cook v. Ochsner Found. Hosp., 559 F.2d 270 (5th Cir. 1977), reached the same conclusion that willfulness is not a prerequisite to an award of fees in a civil contempt case. The Court, noting its "inherent authority . . . to enforce its orders by whatever means," held in a civil contempt case that
it matters not whether the disobedience is willful, the cost of bringing the violation to the attention of the court is part of the damages suffered by the prevailing party and those costs would reduce any benefits gained by the prevailing party from the court's violated order.
We, therefore, hold that Alyeska was not intended to take away the inherent authority of a court to award attorneys' fees in a civil contempt proceeding.