Burke v. Guiney, s. 82-1290

• Decision Date: 18 February 1983
• Docket Number: 82-1583 and 82-1584,Nos. 82-1290,s. 82-1290
• Citation: 700 F.2d 767
• Parties: Edward J. BURKE, Plaintiff, Appellee, v. Elaine GUINEY, Individually and in Her Official Capacity as Commissioner on Affairs of the Elderly of the City of Boston, Defendants, Appellants. Edward J. BURKE, Plaintiff, Appellant, v. Elaine GUINEY, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 767

700 F.2d 767

Edward J. BURKE, Plaintiff, Appellee, v. Elaine GUINEY, Individually and in Her Official Capacity as

Commissioner on Affairs of the Elderly of the City

of Boston, Defendants, Appellants.

Edward J. BURKE, Plaintiff, Appellant, v. Elaine GUINEY, et al., Defendants, Appellees.

Nos. 82-1290, 82-1583 and 82-1584.

United States Court of Appeals First Circuit.

Argued Dec. 10, 1982.

Decided Feb. 18, 1983.

Stephen P. Perlmutter, Boston, Mass., for Elaine Guiney and City of boston.

Michael Avery, Boston, Mass., for Edward J. Burke.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, and SMITH, ^* Senior District Judge.

COFFIN, Chief Judge.

These appeals arise from a 42 U.S.C. Sec. 1983 action by Edward J. Burke, appellee in appeal no. 82-1290 and appellant in nos. 82-1583 and 82-1584 [hereinafter plaintiff], against Elaine Guiney, Commissioner on Affairs of the Elderly of the City of Boston, and the City of Boston, appellants in no. 82-1290 and appellees in nos. 82-1583 and 82-1584 [hereinafter defendants]. Plaintiff alleged in that action that his discharge from the position of editor of "Boston Seniority" ¹ was in violation of his First and Fourteenth Amendment rights.

Prior to the scheduling of a trial date, the parties settled and filed with the district court an Agreement for Judgment. The Agreement for Judgment, approved by the court on June 24, 1981, provided for payment of $13,000 by the City of Boston to plaintiff. Paragraph three of the agreement provided:

"The plaintiff agrees to make no statements contrary to the provision of this agreement for judgment that the settlement of this action, reflected by this agreement for judgment, is neither evidence of nor an admission of liability by any of the defendants."

On August 1, 1981 a story about the settlement appeared in the Boston Globe. Claiming that statements attributed to plaintiff in the article violated paragraph three of the agreement, defendants moved on September 9, 1981 that the district court impose civil contempt sanctions on plaintiff. On March 12, 1982 the district court denied the motion without discussion. Defendants appeal that denial.

While their motion for sanctions was pending, defendants refused to pay plaintiff the settlement amount. On December 10, 1981 plaintiff moved for approval of attachment of trustee process in an effort to collect the settlement amount plus interest from the date of judgment. After defendants' motion for sanctions was denied, defendant City of Boston expressed its willingness to pay the settlement amount but not post-judgment interest. After a hearing on June 18, 1982 the district court, on June 23, 1982, denied plaintiff's motion for attachment. At the conclusion of the June 18 hearing the parties agreed that plaintiff could accept payment of the principal amount of the settlement without waiving his claim for post-judgment interest. In an effort to pursue that claim, plaintiff appeals the denial of his motion for attachment.

Plaintiff also moved, on April 21, 1982, pursuant to the Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. Sec. 1988, for attorney's fees for the time spent in opposing the defendants' motion for sanctions. That motion was also argued at the June 18 hearing and denied without discussion on June 23. Plaintiff appeals.

I. The Motion for Civil Contempt Sanctions

Civil contempt is an appropriate remedy only "when there is clear and convincing proof of a violation of a court decree." Erhardt v. Prudential Group, Inc., 629 F.2d 843, 846 (2d Cir.1980). To be enforceable in contempt an injunctive decree must satisfy the specificity requirements of Fed.R.Civ.P. 65(d). ² Id. See also Matter of Baum, 606 F.2d 592, 593 (5th Cir.1979); H.K. Porter Co. v. National Friction Products Corp., 568 F.2d 24, 27 (7th Cir.1977) (court's order "must set forth in specific detail an unequivocal command").

Defendants argue that paragraph three of the parties' agreement for judgment, set out above, became when approved by the court an injunctive decree enforceable in contempt. Their only proof that plaintiff violated that decree is the August 1, 1981 Boston Globe article itself. Because the district court denied defendants' motion for sanctions without explanation, we do not know whether the court found that paragraph three of the Agreement for Judgment was not an injunctive decree enforceable in contempt, that defendants had not presented clear and convincing proof that plaintiff had violated the agreement, or both.

Though some explanation of the court's reasoning would have been a most welcome aid to our review, we are not compelled to remand for a statement of reasons. "A successful party in the District Court may sustain its judgment on any ground that finds support in the record." Jaffke v. Dunham, 352 U.S. 280, 281, 77 S.Ct. 307, 308, 1 L.Ed.2d 314 (1957). Nor is this a case in which complex events make findings of fact prerequisite to our review. ³ The Agreement for Judgment and the allegedly offending newspaper interview comprise the essential factual record; they are before us.

Because we find that the Globe article did not provide clear and convincing proof that the agreement was breached, we need not decide whether the court's approval of that agreement made it enforceable in civil contempt. No statements directly attributed to plaintiff in the Globe article are clearly contrary to the agreement's provision that the settlement "is neither evidence of nor an admission of liability by any of the defendants."

The article read in most pertinent part:

"In [the agreement], the parties agreed the $13,000 settlement was 'neither an admission nor evidence of liability.'

Burke also agreed not to make any statements contrary to the stipulation in the agreement that it was a result of both parties 'desire to avoid further litigation and to compromise, adjust and settle' Burke's suit.

In an interview from New York City, where he is an assistant editor at the National Law Journal, Burke said he thought the settlement vindicated his contention that his firing was illegal.

'On the eve of the scheduling of a trial date in which the [White] administration would have had the opportunity to disprove my allegations, it chose instead to compensate me for what I have charged all along was an illegal attempt to convert the newspaper into a political organ for Mayor White,' he said."

The statement directly attributed to plaintiff, while perhaps implying more, does not directly claim that the settlement was an admission of liability on defendants' part. The statement that "the settlement vindicated his contention that his firing was illegal", ambiguous in itself, appears to be the journalist's gloss on plaintiff's directly quoted statement that follows immediately, rather than a separate statement by plaintiff himself.

In addition to presenting clear and convincing evidence that a court order has been violated, a party seeking monetary damages in civil contempt, as defendants do here, must show that he has suffered damage as a result of the violation. Parker v. United States, 153 F.2d 66, 70 (1st Cir.1946); McGoff v. Rapone, 78 F.R.D. 8, 30 (E.D.Pa.1978). Here, appellants argue, without elaboration, that they suffered injury to reputation as a result of the alleged violation of the settlement agreement. But the Globe article in which plaintiff's allegedly damaging statement appeared also noted that the "parties agreed the $13,000 settlement was 'neither an admission nor evidence of liability.' " In addition, the article quoted a spokesperson for the City as saying "the administration had decided 'it would be cheaper to settle out of court than to go through the expense of a court trial,' and calling [plaintiff's] suit 'a harassment suit.' " In this context, even if we found that the statement attributed to plaintiff clearly violated the settlement agreement, we would have difficulty finding any damages to defendants resulting from the statement.

Because we find that defendants have not carried their burden of demonstrating a breach of a court order with clear and convincing proof, we have no difficulty concluding that the district court did not abuse its discretion in denying defendants' motion for civil contempt sanctions.

II. Attorney's Fees

The Civil Rights Attorney's Fees Award Act of 1976 ("the Act") amended 42 U.S.C. Sec. 1988 to provide that "the court, in its discretion, may allow the prevailing party" in civil rights actions, including Sec. 1983 actions, "a reasonable attorney's fee as part of the costs." Plaintiff moved pursuant to Sec. 1988 for attorney's fees resulting from its successful defense against defendants' motion for civil contempt sanctions. The district court denied that motion after hearing but without comment.

The district court "has broad discretion to make the initial determination of whether to allow an award of fees", but that discretion is controlled by the standard "that a successful plaintiff 'should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.' " Sargeant v. Sharp, 579 F.2d 645, 647 (1st Cir.1978) (footnote omitted) (quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968)). We have held that summary denial of entitlement to attorney's fees without hearing and "without an adequate statement of reasons for the order does not meet minimum standards of procedural fairness and regularity. Nor does an order issued without a deliberate articulation of its rationale, including some appraisal of the factors underlying the court's decision, allow for a disciplined and informed review of the court's discretion." Id. (citations omitted).

There can be no question here that plaintiff, in realizing a favorable settlement, prevailed within the meaning of the statute on the underlying civil rights claim. See Nadeau v. Helgemoe, 581 F.2d 275, 278-79...