to anticipate any difficulties that might arise before the new school year commenced on September 5, 1995. At that time, defendants' counsel represented that the District of Columbia required more time to collect the data needed to comply with the Court's June 29 and July 21 Orders and that, given such an enlargement of time, payment to the special education providers would proceed as promised. In an order dated August 15, 1995, the Court granted defendants an enlargement of time until August 18, 1995, to pay all outstanding balances, with the understanding that no further extension would be granted, and an enlargement of time to September 1, 1995, to provide the required written assurances to private providers.
These Orders were designed to ensure that students with mental, physical and emotional disabilities in the District of Columbia receive the special educational services to which they are statutorily entitled under federal law and to assure private providers of these services that they will be paid in a reliable and timely fashion as required by statute. They were further intended to halt defendants' ad hoc and unilateral decisionmaking regarding student placement in violation of these students' rights under the IDEA.
Defendants came before the Court on September 8, 1995, four days into the new school year, in acknowledged non-compliance with this Court's orders. The Court's Order of August 15, 1995 requires defendants to pay all outstanding bills to private providers by August 18, 1995, and to provide written assurances to all private providers that future payments will be made in compliance with this Court's orders. In many cases defendants have not done so, once again, without notice to plaintiffs or leave of the Court, ignoring their obligations under statute and Court order. Moreover, plaintiffs have identified several emergency situations in which providers are now unable or unwilling to provide services for disabled students as a result of the District's non-payment. Plaintiffs have also represented to the Court that defendants have not complied with their court-ordered reporting obligations imposed by the June 29 Order.
II. CIVIL CONTEMPT
The Court has both an inherent and a statutory power to enforce compliance with its orders and may exercise that authority through civil contempt. Shillitani v. United States, 384 U.S. 364, 370, 16 L. Ed. 2d 622, 86 S. Ct. 1531 (1966); United States v. United Mine Workers of America, 330 U.S. 258, 330-32, 91 L. Ed. 884, 67 S. Ct. 677 (1947); SEC v. Parkersburg Wireless Ltd. Liab. Co., 156 F.R.D. 529, 534 (D.D.C. 1994); SEC v. Current Financial Services, Inc., 798 F. Supp. 802, 806 (D.D.C. 1992); see 18 U.S.C. § 401. A party is in contempt of court when it "violates a definite and specific court order requiring him to perform or refrain from performing a particular act or acts with knowledge of that order." Whitfield v. Pennington, 832 F.2d 909, 913 (5th Cir. 1987).
In a civil contempt proceeding, the moving party has the burden of showing by clear and convincing evidence that (1) a court order was in effect, (2) the order required certain conduct by the respondent, and (3) the respondent failed to comply with the court's order. Petroleos Mexicanos v. Crawford Enterprises, Inc., 826 F.2d 392, 401 (5th Cir. 1987) see NLRB v. Blevins Popcorn Co., 212 U.S. App. D.C. 289, 659 F.2d 1173, 1183-85 (D.C. Cir. 1981); SEC v. Current Financial Services, Inc., 798 F. Supp. at 806. The court need not find that the violations were willful or intentional. SEC v. Current Financial Services, Inc., 798 F. Supp. at 806; NOW v. Operation Rescue, 747 F. Supp. 772, 774-75 (D.D.C. 1990).
Civil contempt is a remedial device intended to achieve full compliance with a court's order. Hicks v. Feiock, 485 U.S. 624, 631-32, 99 L. Ed. 2d 721, 108 S. Ct. 1423 (1988); Petroleos Mexicanos v. Crawford Enterprises, Inc., 826 F.2d at 399-400. Its goal is not to punish but to exert only so much authority of the court as is required to assure compliance. See Mercer v. Mitchell, 908 F.2d 763, 768 n. 9 (11th Cir. 1990); Matter of Trinity Industries, Inc., 876 F.2d 1485, 1494 (11th Cir. 1989); NOW v. Operation Rescue, 747 F. Supp. at 774. The sanctions imposed in civil contempt proceedings therefore ordinarily are conditional, and a person or entity held in civil contempt may avoid the sanctions by promptly complying with the court's order. Hicks v. Feiock, 485 U.S. at 632-35; Penfield Co. v. SEC, 330 U.S. 585, 590, 91 L. Ed. 1117, 67 S. Ct. 918 (1947).
The Court finds that when defendants failed to pay all outstanding balances to private providers on August 18, 1995, they were in contempt of this Court's August 15, 1995, Order.
This Court has endeavored to create a climate in which students, parents and private special education providers can have confidence that the District of Columbia will fulfill its obligations under the IDEA. It is particularly important that private providers be able to rely on regular and timely payments for their services so that they may continue to serve students without interrupting the students' educational programs or jeopardizing the providers' businesses. Many of these providers are small operations that are dependant on timely payments in order to survive. By failing to comply with this Court's orders, the District of Columbia has undermined the climate of reliability and imposed an unacceptable burden on disabled students, their families and private providers.
In violating this Court's orders, defendants have also breached their duties under the federal statutory and regulatory scheme created by the IDEA. The Court recognizes that the District of Columbia is in severe financial difficulties and that all the citizens of the District, including the students and parents in this case, have a deep interest in the appropriate allocation of the District's limited financial resources. The District has many other critical fiscal obligations which it must meet and the Court is sensitive to those constraints. Nevertheless, those obligations do not permit the District to ignore this Court's orders and the Congressional mandates embodied in the IDEA. Congress has decreed, and this Court has found, that students with disabilities are entitled to a free appropriate special education and that the school system cannot unilaterally change a student's placement without a due process administrative hearing under the IDEA and its regulations. By failing to pay its private providers in a timely fashion, the District of Columbia has unilaterally changed the placements of these students. See Petties v. District of Columbia, C.A. No. 95-0148, Opinion at 5-7, 14-15 (D.D.C. Apr. 4, 1995). Defendants have also precipitated the imminent displacement of some students and jeopardized the financial viability of many of the providers. This Court is thus obligated once again to find defendants in violation of the IDEA and its regulations and in contempt of this Court's orders.
Plaintiffs have submitted a description of the extent of defendants' lack of compliance. In their papers and in open court, plaintiffs have stated that defendants have failed to make full payment of outstanding balances to private providers, have failed to provide assurances to private providers that payment will be made in a timely fashion and on a continuing basis, and have failed to submit accurate status reports. In addition, plaintiffs identify four emergency situations in which students are threatened with imminent displacement as a result of the District's non-payment. Those four providers requiring immediate attention are: the Metropolitan Speech Pathology Group which serves one student; the Maryland School for the Blind which serves four DCPS students; the Washington Developmental Center which services a number of DCPS students and is being threatened with eviction for its inability to pay rent; and the Kennedy-Krieger Institute which has demanded prepayment for one student. The requirements set forth in the Order accompanying this Memorandum Opinion address the emergency situations faced by these providers and students with the exception of the Kennedy-Krieger Institute which will be dealt with separately.
In addition to urging the immediate payment of these providers, plaintiffs recommend that this Court impose more stringent reporting requirements, a prepayment system requiring the District of Columbia to pre-pay private providers at the beginning of each fiscal quarter, a modified schedule of payment deadlines for outstanding balances, and daily fines to be imposed for violations of those deadlines. Plaintiffs shall submit proposals for such modifications by September 26, 1995. The Court has provided for a schedule of daily fines for future noncompliance in the accompanying Order.
Defendants acknowledge that they have failed to pay all outstanding balances to private providers as ordered. Counsel represented in court, however, that all DCPS payments will be made in full by September 15, 1995, and that all DHS payments will be made in full by September 22, 1995. Counsel also represented that checks for several providers identified by plaintiffs will be available for pick up on September 11, 1995. The Court has taken account of these representations in crafting the schedule contained in the accompanying Order.
For the reasons stated in this Memorandum Opinion, the Court finds defendants in contempt of the Court's Order of August 15, 1995, with respect to the payment of outstanding balances to private providers. Amended deadlines for payment, the immediate production of specific checks for providers in emergency situations, and provisions for future sanctions are contained in the accompanying Order.
PAUL L. FRIEDMAN
United States District Judge
On September 8, 1995, this Court held a hearing in the above-captioned matter requiring defendants to show cause why they should not be held in contempt of the Court's Orders of March 17, June 29, July 21 and August 15, 1995. The Court, having considered Plaintiffs' Third Status Report, plaintiffs' supplement thereto, and the September 1, 1995 Submission of defendants, and having heard oral argument on the matters raised therein, and for the reasons stated in the accompanying Memorandum Opinion issued this day, hereby finds defendants in contempt of the Court's Order of August 15, 1995. Accordingly, it is hereby ORDERED that
1. Defendants shall make checks in the following amounts available for pick up by the following providers no later that September 12, 1995, at 2:00 p.m.:
$ 13,370 payable to the Washington Developmental Center
$ 560 and $ 1,635.50 payable to the Metropolitan Speech Pathology Group