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May 29, 1996

OPERATION RESCUE, et al., Defendants.


The opinion of the court was delivered by: OBERDORFE

In its decision of October 18, 1994, the Court of Appeals affirmed the conclusion that defendants violated this Court's injunction to the detriment of plaintiffs, but remanded this matter for further consideration of the nature of the fines that had been imposed for violation of the injunction in this case. See NOW v. Operation Rescue, 308 U.S. App. D.C. 349, 37 F.3d 646, 661 (D.C. Cir. 1994). Although the Court of Appeals held that several fines were criminal and therefore subject to additional procedural safeguards, those fines imposed that were "explicitly compensatory in nature" and per diem fines for failure to appear were upheld as civil fines. 37 F.3d at 658, 662-63.

 Plaintiffs argue that an award of attorneys' fees is an appropriate compensatory fine in this case. See Pls.' Pretrial Statement at 21 (citing Hutto v. Finney, 437 U.S. 678, 689 n.14, 57 L. Ed. 2d 522, 98 S. Ct. 2565 (1978) and NOW v. Operation Rescue, 747 F. Supp. 772, 774 (D.D.C. 1990)); see also Pls.' Mot. for Adoption of Purge Provision at 5 n.7. Plaintiffs represent that federal law permits courts to award attorneys' fees in contempt proceedings. See Hutto v. Finney, 437 U.S. 678, 689 n.14, 57 L. Ed. 2d 522, 98 S. Ct. 2565 (1978). At oral argument on October 10, 1995, counsel for plaintiffs also cited District of Columbia cases that support plaintiffs' position. The District of Columbia Court of Appeals recently held that:

"[A] 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 [her] because of the contemptuous act... which [decree] may include, in the discretion of the court, an award of attorney's fees."

 Link v. District of Columbia, 650 A.2d 929, 931 (D.C. 1994) (quoting In re Federal Facilities Realty Trust, 227 F.2d 657, 658 (7th Cir. 1955)); see also Kelly v. Parents United for the Dist. of Columbia Public Sch., 641 A.2d 159, 169 (D.C. 1994), amended on reh'g in part, 648 A.2d 675 (D.C. 1994).

 Clifford Gannett, a defendant in this case, counters that a fee award would not be appropriate because the Court of Appeals has already held that plaintiffs are not entitled to attorneys' fees. See Gannett's Resp. to Pls.' Pretrial Statement at 8-9 (citing NOW v. Operation Rescue, 37 F.3d at 654). It is true that the Court of Appeals vacated this Court's January 4, 1991 Order awarding attorneys' fees, based on the fact that "the essential predicate for an award of attorneys' fees under [42 U.S.C.] § 1988 [that is, a successful § 1985 claim] no longer exists." NOW v. Operation Rescue, 37 F.3d at 653. However, the court did not rely upon § 1988 for the exercise of the jurisdiction which culminated in the injunction and contempt citation. They were imposed in an exercise of pendent jurisdiction over plaintiffs' local law claim, which jurisdiction was confirmed by our Court of Appeals. Thus, plaintiffs do not base their attorneys' fees request on § 1988; as plaintiffs correctly argue, "fees can also be awarded as part of a civil contempt penalty." Hutto, 437 U.S. at 689 n.14. Plaintiffs' assertion of a local law claim is also supported by District of Columbia precedent. See Link, 650 A.2d at 931. An award of attorneys' fees satisfies the Court of Appeals' directive that "it is incumbent upon the district court to make an express determination as to the existence, nature, and extent of any ... compensable damages, and to tailor compensatory civil fines accordingly." NOW v. Operation Rescue, 37 F.3d at 661. Awarding attorneys' fees and costs is therefore appropriate in this case.

 Plaintiffs represent that although they were awarded attorneys' fees on February 27, 1991, in connection with the first round of contempt proceedings, they have not yet been awarded attorneys' fees in connection with the contempt proceedings regarding the January and April 1992 blockades. Plaintiffs request $ 37,190 in fees and $ 227.80 in costs, and they have filed an affidavit and exhibits supporting their calculations. See Decl. of D. Jean Veta. Moreover, plaintiffs represent that the billing rates requested are the customary billing rates for the attorneys involved, although the highest billing rate has been capped at $ 200 per hour, and that these rates are consistent with prevailing market standards. See Pls.' Pretrial Statement at 22-23; see also Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516, 1522-24 (D.C. Cir. 1988) (en banc). Defendants have not disputed plaintiffs' calculations, and plaintiffs are entitled to the amount they have requested.

 Defendants argue that 18 U.S.C. § 402 governs any criminal prosecutions in this case. Section 402 provides:

Any person, corporation or association willfully disobeying any lawful writ, process, order, rule, decree, or command of any district court of the United States or any court of the District of Columbia, by doing any act or thing therein, or thereby forbidden, if the act or thing so done be of such character as to constitute a criminal offense under any statute of the United States or under the laws of any State in which the act was committed, shall be prosecuted for such contempt as provided in section 3691 of this title and shall be punished by a fine under this title or imprisonment, or both.

 According to defendants, § 402 is the applicable statute because several of the actions complained of were held to violate local statutes against incommoding: "plaintiffs have conceded that several of the defendants were in fact arrested and charged with incommoding and that they then paid the find [sic] for such charge." Defs.' Mot. to Quash at 4. The statute of limitations for actions under § 402 is one year:

No proceeding for criminal contempt within section 402 of this title shall be instituted against any person, corporation or association unless begun within one year from the date of the act complained of; nor shall any such proceeding be a bar to any criminal prosecution for the same act.

 18 U.S.C. § 3285. Defendants therefore argue that § 3285 bars any criminal prosecution for contempt of court for actions that occurred more than one year before the initiation of the prosecution. According to defendants, "since there is no allegation that any violation of the Injunction has occurred within the past year," the motion to quash should be granted. Defs.' Mot. to Quash at 5-6.

 Plaintiffs argue that the applicable statute is instead 18 U.S.C. § 401, which does not have any statute of limitations. Section 401(3) permits federal courts "to punish by fine or imprisonment, at its discretion, such contempts of its authority, and none other, as . . . (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command." Plaintiffs cite a recent case in which a district court appointed an independent counsel to prosecute charges of criminal contempt under § 401(3) against one of the defendants in this case, Randall Terry. See United States v. Terry, 17 F.3d 575 (2d Cir. 1994), cert. denied, 130 L. Ed. 2d 310, 115 S. Ct. 355 (1994). Plaintiffs cite other cases affirming criminal contempt convictions under that section for activities in violation of court injunctions.See United States v. Cunningham, 599 F.2d 120 (6th Cir. 1979); United States v. Eichhorst, 544 F.2d 1383 (7th Cir. 1976); United States v. Partin, 524 F.2d 992 (5th Cir. 1975), cert. denied, 425 U.S. 904, 47 L. Ed. 2d 753, 96 S. Ct. 1493 (1976). Relying on these cases, ...

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