Appeal from the Superior Court of the District of Columbia; (Hon. Robert I. Richter, Trial Judge)
Before Terry and Schwelb, Associate Judges, and Newman, Senior Judge.
The opinion of the court was delivered by: Schwelb
SCHWELB Associate Judge: This appeal presents two questions regarding the remedial authority of a trial Judge who has held a litigant in civil contempt of court. We must first decide whether the Judge may require the contemnor to pay the aggrieved party's counsel fees in the absence of a finding that the contemptuous conduct was willful. If the Judge has the authority to make an award of counsel fees under such circumstances, then we must also decide whether he may limit the award to a token sum because the fees would be paid from the public fisc and because the aggrieved party was represented without charge by a nonprofit legal services organization. We answer the first question in the affirmative and the second in the negative.
On August 15, 1991, the District of Columbia, as landlord, filed an action for possession against Sheila P. Link, a public housing tenant, alleging nonpayment of rent. Ms. Link, represented by attorneys from the Neighborhood Legal Services Program, filed an answer and counterclaim in which she alleged the existence of substantial Housing Code violations. Negotiations ensued and, on April 20, 1992, the parties executed a settlement agreement which required the District, among other things, to make specified repairs in Ms. Link's apartment and to issue a check in Ms. Link's favor in the amount of $800, that sum representing one-third of the rent which Ms. Link had paid over the past three years. The repairs were to be completed in thirty days, except that the time limit was extended to ninety days for certain structural repairs. The check was to be issued within a reasonable time.
The District failed to carry out its obligations under the settlement agreement and, on October 19, 1992, the court, on Ms. Link's motion, issued an order directing the District to comply with all of the terms of the agreement by November 15, 1992. The District did not comply with the court's order and, on March 25, 1993, following an evidentiary hearing, the trial Judge held the District in civil contempt. *fn1 Five days later, the Judge issued a written order in which he required the District to make the remaining repairs by a specified date, directed the District to pay an additional $115 in filing fees and interest, and awarded Ms. Link $100 in counsel fees. On April 22, 1993, Ms. Link filed a timely appeal. She now contends, as she did in the trial court, that the award of counsel fees was inadequate.
The District did not cross-appeal from the trial court's order. Its position on Ms. Link's appeal, however, is that the trial Judge was without authority, under Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975), and its progeny, to award any counsel fees at all. This is so, according to the District, because the Judge expressly found that the District's failure to comply with the court's order was not willful. The District contends, in other words, that the award was not inadequate because the only legally permissible award was zero. *fn2 We disagree with the District's position.
"Civil as distinguished from criminal contempt is a sanction to enforce compliance with an order of the court or to compensate for losses or damages sustained by reason of noncompliance." McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 93 L. Ed. 599, 69 S. Ct. 497 (1949) (citations omitted); D.D. v. M.T., 550 A.2d 37, 43 (D.C. 1988) (citing McComb). "The cost of bringing the violation to the attention of the court is part of the damages suffered by the prevailing party . . . ." Cook v. Ochsner Found. Hosp., 559 F.2d 270, 272 (5th Cir. 1977). " party compelled to resort to a civil contempt proceeding to preserve and enforce an adjudicated right is entitled to a decree by way of a fine for injuries actually sustained by because of the contemptuous act . . . which may include, in the discretion of the court, an award of reasonable attorney's fees." In re Federal Facilities Realty Trust, 227 F.2d 657, 658 (7th Cir. 1955). Accordingly, "the 'American Rule' notwithstanding, the contemnor is ordinarily required to pay the aggrieved party's counsel fees, even in the absence of a finding of willfulness." D.D. v. M.T., supra, 550 A.2d at 44 (citations omitted). *fn3
Civil contempt need not be willful to justify a discretionary award of fees and expenses as a remedial measure. Perry v. O'Donnell, 759 F.2d 702, 705 (9th Cir. 1985). "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 . . . . 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." Motley v. Yeldell, 664 F. Supp. 557, 558 (D.D.C. 1987) (Robinson, C.J.) (citations and footnote omitted). *fn4
The District's reliance on Alyeska, and on our decisions which follow Alyeska, see, e.g., In re Antioch University, 482 A.2d 133, 136 (D.C. 1984), is misplaced. In Alyeska, the Supreme Court reiterated the "American Rule," which provides that litigants are ordinarily required to pay their own counsel fees, and discussed the recognized exceptions to that Rule:
court may assess attorneys' fees for the willful disobedience of a court order . . . as part of a fine to be levied on the defendant . . . or when the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons . . . .
421 U.S. at 258-59 (citations and internal quotation marks omitted). *fn5 The Court explained that Congress has not "extended any roving authority to the Judiciary to allow counsel fees as costs or otherwise whenever the courts might deem them warranted." 421 U.S. at 260.
As former Chief Judge Robinson has correctly observed, however, "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." Motley, supra, 664 F. Supp. at 558; accord, Perry, supra, ...