Petties v. District of Columbia, Civ. A. No. 95-0148(PLF) 94-2451(PLF).

• Decision Date: 12 May 1995
• Docket Number: Civ. A. No. 95-0148(PLF) 94-2451(PLF).
• Citation: 888 F. Supp. 165
• Court: U.S. District Court — District of Columbia
• Parties: Nikita PETTIES, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants. David SKERRITT, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.

888 F. Supp. 165

Nikita PETTIES, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.

David SKERRITT, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.

Civ. A. Nos. 95-0148(PLF) 94-2451(PLF).

United States District Court, District of Columbia.

May 12, 1995.

COPYRIGHT MATERIAL OMITTED

Beth Goodman, Tanya A. Harvey, Washington, DC, for plaintiffs in No. 95-0148.

Karen Buck, Office of Corp. Counsel, Sp. Litigation Section, Washington, DC, for defendants.

Francisco Lopez, Bogin and Eig, P.C., Washington, DC, for plaintiffs.

Beatrice Hendricks, Office of Corp. Counsel, Washington, DC, for defendants.

OPINION

FRIEDMAN, District Judge.

These two cases are before the Court on plaintiffs' motions to show cause why the defendants should not be held in contempt of court for failing to comply with this Court's Orders of March 17, 1995. The plaintiffs in the Petties case are minor students and their parents who represent a class certified by the Court on March 17, 1995, and defined as follows:

all District of Columbia Public Schools ("DCPS") students currently placed in private special education schools or receiving special education and/or related services from a private third party provider, all DCPS students placed in public schools who currently are receiving related services from private providers, and all DCPS students who have been determined by an administrative decision or by agreement with the DCPS to be eligible to receive services from private providers (including private placements).

The plaintiffs in the Skerritt case are David Skerritt, an eleven-year-old child with emotional and learning disabilities, and his mother.

On March 17, 1995, the Court, after hearing argument, entered a Preliminary Injunction in the Petties case directing the defendants to comply with their statutory obligations under the Individuals With Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., and its implementing regulations, and made the following findings:

Defendants have placed numerous DCPS students in private special education facilities pursuant to their obligation to provide an appropriate placement for these students. Similarly, defendants have entered into contracts or other agreements with private firms or other entities for the provision of special education related services to students attending public schools within the DCPS system. Defendants are required by law to maintain these students' placements and related services by paying the costs thereof.

Defendants have not paid the costs of private special education placements or related services either fully or on a current or timely basis for at least the 1994-1995 school year. Consequently, defendants have violated the IDEA and other laws and regulations intended to ensure that DCPS students with special education needs receive a free, appropriate education.

Unless defendants fully and immediately fund all DCPS students currently in private special education placements and/or receiving related services from private providers and, in addition, give adequate written assurances that such payments will be made on a current basis in the future, many, if not all of those students will have those placements and/or services terminated, and there is no indication that appropriate alternative placements will be available to meet the students' individual needs.

Petties v. District of Columbia, C.A. No. 95-0148, Preliminary Injunction at 1-2 (D.D.C. Mar. 17, 1995). The Court ordered the defendants to pay within 14 days all costs outstanding as of the date of the Court's Order, including costs of tuition for all private special education placements of DCPS students and all costs of all special education related services that private providers render to DCPS students pursuant to contracts or other agreements with the DCPS. The Court entered a similar Order on the same date in the Skerritt case.¹

On April 25, 1995, upon motion of the plaintiffs in the Petties case, the Court directed the defendants to show cause why they should not be held in contempt of the Court's March 17 Order with respect to the following matters:

1. Defendants' notification to private special education schools that, after June 9, 1995, defendants will not pay tuition or provide transportation for DCPS students placed in those schools;

2. Defendants' failure to pay all outstanding costs of private special education placements and/or related services, including those for which DHS has been invoiced; and

3. Defendants' failure to pay the outstanding costs of special education placements and/or related services as to which defendants claim there is a "dispute."

Petties v. District of Columbia, C.A. No. 95-0148, Order To Show Cause (D.D.C. Apr. 25, 1995).

In the Skerritt case, the Court granted plaintiffs' motion directing the defendants to show cause why they should not be held in contempt with respect to their notification to David Skerritt's school that they would not pay tuition or provide transportation for him after June 9, 1995. Skerritt v. District of Columbia, C.A. No. 94-2451, Order (D.D.C. Apr. 25, 1995). The defendants responded to the orders to show cause, and the Court heard argument from counsel in both cases on May 4, 1995.

I. CIVIL CONTEMPT

The Court has both an inherent and a statutory power to enforce compliance with its orders and may exercise that authority through a civil contempt proceeding. Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535-36, 16 L.Ed.2d 622 (1966); United States v. United Mine Workers of America, 330 U.S. 258, 330-32, 67 S.Ct. 677, 713-15, 91 L.Ed. 884 (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). Congress codified the courts' contempt powers in 18 U.S.C. § 401, which provides:

A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as — ...

(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

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) (citing SEC v. First Financial Group of Texas, Inc., 659 F.2d 660, 669 (5th Cir.1981)), cert. denied, Pennington v. McLaughlin, 487 U.S. 1205, 108 S.Ct. 2846, 101 L.Ed.2d 883 (1988).

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., 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, 108 S.Ct. 1423, 1429-30, 99 L.Ed.2d 721 (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, 108 S.Ct. at 1429-31; Penfield Co. v. SEC, 330 U.S. 585, 590, 67 S.Ct. 918, 921, 91 L.Ed. 1117 (1947).

The Court finds that when the defendants notified private special education schools that, after June 9, 1995, they will not pay tuition or provide transportation for DCPS students placed in those schools, they were in contempt of this Court's March 17, 1995, orders. The Court finds, however, that defendants are not in contempt of this Court's Order with respect to the other two matters raised by the plaintiffs in the Petties case.

II. DISCUSSION

A. Refusal To Pay For Class Members' Placements After June 9, 1995

By letter dated March 24, 1995, one week after the Court entered its Preliminary Injunction, defendant Dr. B. Garnett Pinkney, Director, Special Education Branch, the Logan School, sent notification to directors of all special education private schools in which DCPS students have been placed, advising them that the District of Columbia Public Schools will be closed early this year due to the current financial crisis faced by the District of Columbia government, that the last day of school for all DCPS students is June 9, 1995, and that all DCPS employees, including school bus drivers, would be furloughed from June 12 through June 23, 1995. Dr. Pinkney advised the directors of these schools that tuition for the private placements and bus transportation for DCPS students to private schools for special education therefore would be terminated as of June 9, 1995. Letter from Dr. B. Garnett Pinkney to All Special Education Private School Directors, Exhibit B to Memorandum in Support of Plaintiffs' Motion for Show Cause Order in Civil Action No. 95-0148, and Exhibit 2 to Memorandum in Support of Plaintiffs' Motion for Show Cause Order in Civil Action No. 94-2451; Affidavit of Dr. B. Garnett Pinkney, Exhibit 1 to Defendants' Memorandum in Opposition to Plaintiffs' Motion to Show Cause in...