                                                                  PUBLISH



             IN THE UNITED STATES COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT

                   -------------------------------------------

                                No. 97-6327

                   --------------------------------------------

                  D. C. Docket No. CV-83-C-5137-NE


JAMES HUMPHREY CHAIRS, DANNY WAYNE OLIVER,
BOBBY WAYNE FISHER, RALPH JONES, MARVIN WALKER
HOPKINS, ALL PERSONS WHO ARE OR HAVE BEEN
INCARCERATED IN THE MORGAN COUNTY JAIL UNDER
THE CUSTODY AND CONTROL OF THE SHERIFF OF
MORGAN COUNTY, ALABAMA SINCE 3/8/82,

                                                      Plaintiffs,

    versus

MORGAN COUNTY SHERIFF BUFORD BURGESS,
MORGAN COUNTY COMMISSIONERS,
                                                      Defendants-Appellees,

REGIONAL COMMISSIONERS DEPARTMENT OF
CORRECTIONS,

                                                      Defendant,
ALABAMA DEPARTMENT OF CORRECTIONS,
JOSEPH SIMON HOPPER, COMMISSIONER,
ALABAMA DEPARTMENT OF CORRECTIONS,

                                                            Defendants-Appellants.


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               Appeal from the United States District Court
                  for the Northern District of Alabama

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                                    (June 18, 1998)


Before EDMONDSON, CARNES and MARCUS, Circuit Judges.



EDMONDSON, Circuit Judge:

     In      this         jail-overcrowding                                       case,   we


conclude that the district court erred in


holding       the           State                 in          contempt                    for


violating an injunction.                                         We vacate the




                                              2
district    court’s     order          and   remand       for


further proceedings.




                      Background




      In   March       1986,       a    consent       decree


(Decree) was entered by the district court

                                                               1
for the Northern District of Alabama.


  1
  The Decree was the result of a class action complaint filed by
                               3
Under the Decree, the Alabama Department


of Corrections and the Commissioner of


the Alabama Department of Corrections


(the State) were ordered to remove state


prisoners from the Morgan County Jail


within thirty days of the receipt by the


State of the conviction and sentencing


transcript for the transferring inmate.


     On      20      February         1997,     the     Morgan


County Sheriff and Morgan County (the



inmates in the Morgan County Jail (Plaintiffs). The complaint alleged
that state and county prison officials had violated and were violating
Plaintiffs’ rights under the Eighth and Fourteenth Amendments.
                                  4
County) filed a          motion      to    enforce   the


Decree.     At that time, the County alleged


that there were thirty-two prisoners who,


under the terms of the Decree, should have


been    already        removed    to      state   prison


facilities.      The motion requested that the


court     hold   the    State   in   contempt        and


impose sanctions on the State for failing


to comply with the Decree.                In addition,


counsel for the Plaintiffs filed a motion


for attorney’s fees due to the repeated and




                            5
costly efforts to ensure that the State


comply with the Decree.


   On 3 March 1997, the district court filed


an order directing the State to show cause


for their noncompliance at a hearing on


20 March 1997.         On 18 March 1997, the


State   filed   a   response    to   the    County’s


motion    asserting      that   the       State    was


unable to comply with the Decree due to


substantial     overcrowding         of   the     state


prison system.       On the same day (that is,




                         6
two days before the contempt hearing), the


State also filed a motion to modify the


Decree.


   At the show cause hearing, the district


court found that, contrary to the State’s


argument, it was possible for the State to


comply with the Decree.     As a result, the


district court issued the following order:


      [T]he Court finds and concludes
   that the Department has wilfully
   violated the Consent Decree.
      [1] In order to compel compliance
   with the Consent Decree, it is hereby
   ORDERED    that   the   United   States


                     7
     Marshall                shall            take        the
                                                             2
     Commissioner               or      his    designee[ ]
     into      custody       and       detain      him/her
     until such time as the Department
     has fully complied with the terms of
     the Consent Decree.
          [2] Henceforth, for each day a
     state inmate is held in the Morgan
     County        Jail     in        violation      of    the
     terms of the Consent Decree, the
     Department              shall      reimburse          the
     Morgan County Jail at the rate of
     Twenty-three Dollars ($23.00).                       Said
     reimbursement shall be made by the
                                 th
     twentieth            (20 )          day       of      the
     succeeding          month           following         the
     violation.




 2
   Counsel for the State was ultimately detained for a few hours until
compliance was achieved. We stress that counsel (Ms. Ellen
Leonard) was not found to be in contempt of court and was not
blamed for the State’s contempt; she volunteered to stand in the
place of the Commissioner as the Commissioner’s designee.
                                  8
     [3]    Counsel       for        the     county
defendants and the plaintiffs shall
have        and      recover           from        the
Department                a          reasonable
attorney’s         fee    for        all    services
rendered      in        efforts       to     achieve
compliance with the Consent Decree
since 1990.       Within fifteen (15) days
of    the   date     of       this    Order,      said
counsel shall file with the court a
statement          of    the     fee       requested,
services rendered, hours expended,
and    expenses          incurred          in    these
efforts.          In      the        absence       of
agreement between the parties, the
matter       shall       be    set     down       for
hearing       on        motion         by       either
counsel.
     [4] The court shall impose a fine
as an additional sanction for the
past and current violations of the
Consent Decree.           The amount of the


                          9
        fine shall be reserved for further
        hearing and determination.



The State now appeals the district court’s failure to modify the

Decree, the contempt finding and the imposition of the first

three sanctions.

                           Discussion3

    3
      Recognizing our continuing obligation to review jurisdiction
during the appellate process, we conclude that we lack jurisdiction
to consider the State’s arguments challenging the first and third
sanctions (incarceration of State’s counsel and award of attorney’s
fees). See generally National Solid Wastes Management Ass’n v.
Alabama Dep’t of Environmental Management, 924 F.2d 1001, 1002
(11th Cir. 1991).
      We must decline to consider the State’s argument challenging
the incarceration of its counsel because the matter is moot. “In the
context of purely coercive civil contempt, a contemnor’s compliance
with the district court’s underlying order moots the contemnor’s
ability to challenge his contempt adjudication.” In re Grand Jury
Subpoena Duces Tecum, 955 F.2d 670, 672 (11th Cir. 1992).
      We also decline to consider the State’s argument challenging
the district court’s award of attorney’s fees because the district
court’s order was not final on that point. The amount of fees to be
paid had yet to be determined. See Combs v. Ryan’s Coal Co., 785
F.2d 970, 976 (11th Cir. 1986); see also Republic Natural Gas Co. v.
Oklahoma, 68 S.Ct. 972, 976 (1948); Forschner Group, Inc. v. Arrow
                                10
     The State contends that it should not have been held in

contempt for two reasons: (1) that the district court improperly

declined to hear the motion to modify the Decree at the show

cause hearing; and (2) that the circumstances made the finding of

contempt error. We discuss each in turn.




A.   Postponement of Hearing for Motion to Modify



     We have said that “typically” motions to modify should be

heard at the same time as the contempt proceeding. See Mercer

Trading Co., 124 F.3d 402, 410 (2nd Cir. 1997).
      But we can review the district court’s order to the extent that
contempt was found and a prospective fine -- the $23.00 per day --
was then imposed on the State. See generally 28 U.S.C. § 1292(a)(1)
(granting jurisdiction over interlocutory order that, in effect, modifies
an injunction). See also Sizzler Family Steak Houses v. Western
Sizzlin Steak House, Inc., 793 F.2d 1529, 1533-34 n.1,2 (11th Cir.
1986); Motorola, Inc. v. Computer Displays Int’l, Inc., 739 F.2d 1149,
1154-55 (7th Cir. 1984).
                                   11
v. Mitchell, 908 F.2d 763, 768 (11th Cir. 1990). This practice

makes sense because commonly the defense to contempt is

based on changed circumstances that would also warrant

modifying the pertinent decree.

      But, the circumstances that might warrant a finding of no

contempt in a particular instance may not warrant a

modification of a decree.       For example, the pertinent new

circumstances may be too temporary or aberrational. And

circumstances that might warrant a court to exercise its

discretion and loosen a decree by way of modification may not

necessarily amount to a complete defense to contempt under

the earlier unmodified decree.4 It depends. And, we have never

  4
  Modification is justified when “a significant change in facts or law
warrants revision of the decree and . . . the proposed modification is
suitably tailored to the changed circumstances.” Rufo v. Inmates of
Suffolk County Jail, 112 S.Ct. 748, 765 (1992); see also Heath v.
DeCourcy, 992 F.2d 630, 634 (6th Cir. 1993) (Institutional reform
consent decrees “are subject to a lesser standard of
modification, requiring the lower court to identify a defect or
deficiency in its original decree which impedes achieving its
goal, either because experience has proven it less effective,
                                 12
ruled out altogether the power of a district court, in the

management of its docket, to postpone a formal hearing on a

motion to modify to a time after the show cause hearing on

contempt.

     In this case, the motion to modify was filed two days before

the show cause hearing was to be held. It was unclear at the

show cause hearing that all the parties had then been served with

the motion to modify. In such circumstances, the district court

did not commit reversible error by declining to hear the motion to

modify although the court went on to find the State to be in

contempt. As a result, the questions here are whether the show

cause hearing on contempt (when viewed merely as a show cause

hearing on contempt) was adequate and whether the finding of

contempt was justified.




disadvantageous, or because circumstances and conditions
have changed which warrant fine-tuning the decree.”) (internal
quotations and citation omitted)).
                               13
B.   Contempt Proceedings



     “[C]ivil contempt proceeding[s are] brought to enforce a

court order that requires [a party] to act in some defined

manner.” Mercer, 908 F.2d at 768. A petitioner “must [first]

establish by clear and convincing evidence that the alleged

contemnor violated [a] court’s earlier order.” United States v.

Roberts, 858 F.2d 698, 700 (11th Cir. 1988) (citation omitted).

Once this prima facie showing of a violation is made, the

burden then shifts to the alleged contemnor “to produce

evidence explaining his noncompliance” at a “show cause”

hearing. Citronelle-Mobile Gathering, Inc. v. Watkins, 943 F.2d

1297,   1301 (11th Cir. 1991); see Mercer, 908 F.2d at 768;

Roberts, 858 F.2d at 701.

     At the show cause hearing, the contemnor is “allowed to

show either that he did not violate the court order or that he

was excused from complying.” Mercer, 908 F.2d at 768.        A

                              14
contemnor may be excused because of an“inability” to comply

with the terms of the order. See Watkins, 943 F.2d at 1301;

Roberts, 858 F.2d at 701. To satisfy this burden, a contemnor

must “offer proof beyond the mere assertion of an inability.”

Watkins,    943   F.2d   at   1301.     Instead,    a   contemnor

“demonstrate[s] an inability to comply only by showing that [he

has] made ‘in good faith all reasonable efforts to comply.’” Id.

(quoting United States v. Ryan, 91 S.Ct. 1580, 1583 (1971)); see

also Roberts, 858 F.2d at 701; Newman v. Graddick, 740 F.2d

1513, 1525 (11th Cir. 1984) (“[A] person who attempts with

reasonable diligence to comply with a court order should not be

held in contempt.”).

     On appeal, the State contends that the district court

committed basically two errors. First, the State argues that the

district court’s limited inquiry and determination about the State’s

“ability to comply” was too narrow. Second, it contends that the



                                15
district court improperly excluded evidence that was relevant to

a determination of “ability.”

      In this case, the State was violating the Decree. The State

said that its violation should be excused. The State claimed that

its violations were the result of an inability to comply with the

terms of the Decree. And to support the claim of inability, the

State offered evidence of these circumstances: (1) that the state

prison system’s resources were entirely inadequate, that is, not

enough facilities, beds and guards were available for all of the

prisoners being sentenced; and (2) that the State was subject to

a large number of court orders5 requiring the removal of prisoners

from county jails.

      The district court, however, rejected the State’s argument.

In so doing, the district court appears to have limited its focus


  5
   The State was subject to 67 orders contained in one blanket court
order and an additional 25 individual court orders. The State, without
objection, elicited this testimony from the Commissioner of the
Alabama Department of Correction.
                                 16
to the fact that the State transferred most of the excess

prisoners out of the Morgan County Jail before the show cause

hearing.6 And, because the State actually transferred prisoners

from the county jail to state prisons, the district court found the

State must have had the ability to comply with the Decree.7

  6
    Before the show cause hearing, the State transferred out of the
Morgan County Jail 30 of the 32 prisoners whose presence violated
the terms of the Decree.

      The district court specifically said this
      7


about the State’s ability to comply:
                I understand that proposition
          [about inability].          But the proof of
          the pudding is in the eating.
                In fact, if I’m to believe what
          has     been   said     here      today,       the
          commissioner, in the last thirty
          days, has complied at least -- well,
          with the exception of two inmates,
          hasn’t he?
                                ***
                The court finds that over the

                                17
Because the district court found that the State had no inability
    years that this consent order has
    been in effect, the State
    Department of Corrections has
    been in consistent
    noncompliance.             The court finds
    that it is only after the plaintiffs
    and/or the county defendant files
    a motion with the court that the
    state defendant responds.                 And the
    court finds that the defendants
    have not shown an inability to
    comply with the court order with
    respect to the most recent motion
    filed by the county defendant.                  The
    evidence shows that in fact the
    state could have complied with the
    order. . . . The court finds that with
    two exceptions the state
    defendants have removed the
    prisoners who were identified in
    the attachment to the motion to
    hold the defendants in contempt.

                               18
to comply with the Decree, the district court concluded the

State was in contempt. We conclude that the district court’s

interpretation of “inability” was incorrect.

       That it was not strictly impossible for the State to transfer

prisoners from the Morgan County Jail when necessary is

immaterial.8 It does not prove or mean that the State was not

unable to comply with the Decree. “Inability,” as a defense to

contempt, does not mean that compliance must be totally

impossible. Instead, the inability that will absolve a party from

being held in contempt requires only that the noncomplying

party has made “in good faith all reasonable efforts to comply”

with the terms of a court order. Watkins, 943 F.2d at 1301;

Roberts, 858 F.2d at 701; see also Newman, 740 F.2d at 1525 (if

   8
     The district court’s written order found and concluded that the
State “has not made a reasonable effort to comply with the Consent
Decree.” But the district court elaborated on this statement not much
later in the same order: “The court does not credit the Department’s
assertion that it has been impossible to comply with the Consent
Decree.” It is this notion -- that “impossibility” is important -- that
worries us about the district court’s decision.
                                  19
party uses “reasonable diligence” to comply with an order, he

should not be held in contempt). The district court should have

considered fully the State’s ability (or inability) in the light of

this “reasonable efforts” standard. By failing to demonstrate

such consideration, the district court erred.

      In this case, the State was allowed to put in some evidence

to support its claim of inability. But, the State sought to offer

other evidence showing that its compliance with the Decree

could cause it to violate the orders of other courts. The district

court, however, excluded this evidence and, instead, stated that

it was limiting its inquiry to whether there was compliance with

this Decree.9 On appeal, the State argues that the district court

  9
   This exchange took place during the show cause hearing:
    BY MS. LEONARD [TO MR. HOPPER]
    Q     Based on the number of inmates that are being
          sentenced from the county jails presently, can you
          comply with all the consent decrees and consent
          orders that the Department of Corrections is
          presently under?
          MR. SHINN: We object to that.
    A     No, I cannot.
                                20
improperly excluded this evidence. We agree. Courts cannot

blind themselves to reality. The array of conflicting orders10 to

which a party is subject is a material circumstance in a contempt

proceeding.

       A party demonstrates an “inability” to comply by showing

that he has made “‘in good faith all reasonable efforts to


              THE COURT: The objection is sustained.
              MS. LEONARD: Your Honor, if I could just argue one
       little point on it.
              THE COURT: Not right now. We are going to finish
       up with the evidence first, then we will take argument.
              MS. LEONARD: Well, I think under the law,
       reasonable diligence and whether or not you can do --
       make an effort to not be in contempt is highly relevant.
              THE COURT: Well, it seems to me that the inquiry this
       morning is, number one, whether the department has had
       knowledge of the [Decree]; and number two, whether
       assuming that knowledge, it has complied with the
       [Decree].
  10
     The words “conflicting orders” may not be exactly right. As we
understand it, this case does not involve the circumstance where one
court has ordered a party “to do X” and another court has ordered
the same party “to do no X.” The different orders in this case might
be more accurately described as potentially conflicting orders, but
“conflicting orders” is a shorter phrase that adequately captures our
meaning.
                                   21
comply.’” Watkins, 943 F.2d at 1301 (quoting Ryan, 91 S.Ct. at

1583). We do not interpret “good faith” and “reasonable efforts”

to require necessarily that a party violate the order of one court

to avoid violating the order of another court. We do not rule out

that a party may be acting in “good faith” and with all “reasonable

effort” to comply with a court order, but still violate that order,

because compliance would cause the violation of other court

orders.11 As such, evidence about whether, and to what extent,

  11
    We stress, however, that merely being subject to different court
orders constitutes no defense to contempt. Despite the presence of
conflicting orders from other courts, a district court can correctly
conclude, after studying all the circumstances, that a party has failed
to act reasonably to comply with the terms of its decree.
      For example, a party would not act in good faith and with all
reasonable efforts if he did little or nothing to comply with any of the
various court orders: excusing each failure by saying to each court
that he could not comply at the same time with some other court’s
order. Or maybe a district court could determine that a party has not
acted in good faith or with all reasonable efforts by failing to comply
with its orders that were first in time over later inconsistent orders of
other courts. These sketches are just examples.
      We do not decide today whether conflicting orders from other
courts will be a complete defense to contempt in this case. But they
might be. And evidence about the existence, nature, timing, and so
forth of such orders, as well as evidence about steps, if any, the State
                                   22
the State was unable to comply with the Decree in relation to the

orders of other courts was material to the contempt

determination.    The district court erred to the extent that it

precluded such evidence from being offered and considered.

     We conclude that the district court’s finding of contempt,

which was based on the district court’s erroneous determination

of “ability,” was an abuse of discretion. We vacate the district

court’s order and remand for further proceedings consistent with

this opinion.12


has taken to be relieved from the necessity of obeying these other
orders, is material evidence. The district court must consider, along
with all the other circumstances, whether compliance with its Decree
would cause the State to be in violation of other courts’ orders.
   12
      Because we have concluded already that the district court’s
decision must be vacated to allow for further proceedings, we do not
decide the merits of the State’s argument challenging the prospective
fine. We do note, however, that prospective fines are an
extraordinary remedy. See Sizzler Family Steak Houses v. Western
Sizzlin Steak House, Inc., 793 F.2d 1529, 1536 (11th Cir. 1986). As
such, they should only be imposed to remedy what the district court
has determined to be “flagrant” violations of an order. And then only
when lesser remedies have been determined to be likely to fail. See
id. Most important, never can the prospective fines operate to
                                 23
     VACATED and REMANDED.




impose absolutely strict liability on the State. The future might, in
fact, produce some good excuses; and the State must remain free to
bring what it believes are, in fact, good excuses to the court.
                                 24
