                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             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Precedential or Non-Precedential: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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   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.
