Sassower v Field Petition for Rehearing and Suggestion of Rehearing En Banc

    UNITED STATES COURT OF APPEALS 
SECOND CIRCUIT
--------------------------------------------------- x
ELENA RUTH SASSOWER and DORIS L. SASSOWER,

Plaintiffs-Appellants,

-against- Index No: 91-7891

KATHERINE M. FIELD, CURT HAEDKE,
LILLY HOBBY, WILLIAM IOLONARDI,
JOANNE IOLONARDI, ROBERT RIFKIN, 
individually, and as Members of the 
Board of Directors of 16 LAKE STREET 
OWNERS, INC., HALE APARTMENTS, DeSISTO 
MANAGEMENT, INC., 16 LAKE STREET OWNERS, INC., and ROGER ESPOSITO, 
individually, and as an officer of 
16 LAKE STREET OWNERS, INC.,

Defendants-Appellees.------------------------------------------ x

PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC

DORIS L. SASSOWER 
Appellant Pro Se 
283 Soundview Avenue 
White Plains, New York 10606

ELENA RUTH SASSOWER 
Appellant Pro Se 
16 Lake Street, Apt. 2C 
White Plains, New York 10603



TABLE OF CONTENTS

TABLE OF AUTHORITIES..........................................  i

STATEMENT OF THE ISSUES.......................................  1

ESSENTIAL FACTS FOR PURPOSES OF THIS REHEARING PETITION
What The District Judge Did............................... 4
What The Three Judge Panel Did............................ 5

POINT I:
The Panel Misapprehended That The District Judge "ExplicitlyRelied" On Inherent Authority And Overlooked The Fact
That Even Had He Done So, His Opinion Did Not Make
Prereguisite Findings Required by Oliveri v. Thompson
For Fee-Shifting, And The Record Would Support No SuchFindings....................................................... .

POINT II:
The Decision Is Internally Inconsistent And Conflicts
With Christianburq Garment Co. v. EEOC........................ 11

POINT III:
The Decision Conflicts With Chambers v. Nasco In InvokingInherent Authority Without Prerequisite Findings AndWithout Due Process........................................... .

POINT IV:
The Decision Conflicts With Hall v. Cole And
Decisions Of This Circuit In That It Failed To Fix
Liability In Accordance With Personal Culpability............. 13



POINT V;
The Decision Conflicts With Chambers v. Nasco And 
Hazel-Atlas v. Hartford In That The Panel Failed To 
Invoke Its Inherent Authority To Adjudicate The Merits 
Of Appellants' Rule 60(b)(3) Seeking To Vacate Defendants' Fraudulently Procured Judgment...........................

POINT VI:
The Decision Conflicts With Brocklebv Transport v. 
Eastern States Escort And United States v. Aetna In That 
Defendants Are Not The Real Parties In Interest Since 
The Insured Defendants Were Compensated By The Insurer For The Entire Cost Of Their Legal Defense.............

POINT VII:
The Decision Conflicts With New York Retarded Children
Y_!_Carey In That No Contemporaneous Timesheets Were
Submitted By Defense Counsel And The Award Lacked The 
Specificity Required By Decisions Of This Circuit And Of the Supreme Court.............................

CONCLUSION..............................................

EXHIBIT "A": Order of this Court dated December 4, 1991.

EXHIBIT "B": Decision of the Panel dated August 13, 1992

Abbreviation Guide: 
Br................
Reply
A-
AA-

Appellants' Brief 
Appellants' Reply Brief 
Appellants' Appendix 
Defendants' Appendix



TABLE OF AUTHORITIES

Brocklesbv Transport v. Eastern States Escort, 904 F.2d 131 (2nd 
Cir. 1990)

Browning Debenture Holders' Committee v. Dasa Corp.. 560 F.2d
1078 (2nd Cir. 1977)

Business Guides v. Chromatic Coirnn. . 498 U.S. ____, 112 L.Ed. 2d
1140, 111 S.Ct ____ (1991))

Calloway v. Marvel Entertainment Group. 854 F.2d 1452 (2nd Cir. 
1988)

Chambers v. Nasco, Inc.. Ill S.Ct. 2123 (1991)

Christianburq Garment Co. v. EEOC. 434 U.S. 412 (1978)

Dow Chemical Pacific Ltd, v. Rascator Maritime S.A., 782 F.2d 329 (2nd Cir. 1986)

I. Meyer Pincus & Assoc, v. Qppenheimer & Co.. 936 F.2d 759 (2nd Cir. 1991)

Faraci v. Hickev-Freeman Co.. 607 F.2d 1025 (2nd Cir. 1979)

Greenberg v. Hilton International Co.. 870 F.2d 926 (2nd Cir. 1989)

Hall v. Cole. 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973)

Hazel-Altas Glass Co. v. Hartford-Empire Co. . 322 U.S. 238, 64S.Ct. 997, 88 L.Ed. 1250 (1944)

Hensley v. Eckerhart. 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)

Leber-Krebs, Inc, v. Capitol Records. 779 F.2d 895 (2nd Cir. 1985)

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McMahon v. Shearson/American Express, Inc.. 896 F.2d 17 (2nd Cir.

— York— Ass'n. for Retarded Children v. Carev. 711 F.2d 1136 (2nd Cir. 1983)

Oliveri v. Thompson. 803 F.2d 1265 (2nd Cir. 1986)

Roadway Express Inc, v. Piper. 447 U.S. 752, 100 S.Ct. 2455, 65L. Ed.2d 488 (1980)

Sanko S.S. Co.. Ltd, v. Galin. 835 F.2d 51 (2nd Cir. 1987)

United States v._Aetna Casualty & Surety Co. . 338 U.S. 366 70S.Ct. 207, 94 L.Ed. 171 (1949)

United—States—v_._International Brotherhood of Teamsters. 948 F 2d1338 (2nd Cir. 1991)

Civ.R. 11; 60(b)(3)

28 U.S.C. § 1927



This Petition seeks rehearing of the August 13, 1992
Decision [hereafter "the Decision"] by a three-judge panel of 
this Court ["the Panel"], sustaining a counsel fee/sanctions 
award of nearly $100,000 against two civil rights plaintiffs.

The issues involved are of transcending national
importance not only to civil rights litigants, but to all
litigants, since the Panel relies on inherent power to sustain an 
"extraordinary" fee award (at 6389) against Appellants where 
standards of other sanctioning provisions were not met— yet 
simultaneously fails to invoke inherent power to prevent fraud on 
the Court where the standards of Rule 60(b)(3) were met by
Appellants in their uncontroverted formal motion to vacate
Defendants' fraudulently procured judgment. Such discriminatory 
use of inherent power disregards due process, equal protection, 
and bedrock law of the Supreme Court and this Circuit.

STATEMENT OF THE ISSUES
1. Whether the Decision conflicts with I. Meyer 

Pincus & Assoc, v. Oppenheimer & Co. . 936 F.2d 759 (2nd Cir. 
1991), in affirming the award on grounds other than those relied 
on by the District Judge, without support in the record. [Pt. I]

2. Whether the Decision conflicts with Hazel-Atlas
Glass Co. v. Hartford-Emoire Co.. 322 U.S. 238 (1944), reaffirmed 
in Chambers v. Nasco. Ill S.Ct. 2123 (1991), as well as Leber-
Krebs, Inc, v. Capitol Records. 779 F.2d 895 (2nd Cir. 1985), in
that, apart from Appellants' Rule 60(b)(3) motion, courts have 
inherent authority to vacate judgments obtained by fraud. [Pt. V]

3. Whether the Decision conflicts with established

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equitable principles and equal protection rights in that it 
failed to rule on Appellants' objection that the District Judge 
did not adjudicate their "unclean hands defense", detailed and 
documented in their Rule 60(b)(3) motion.

4. Whether the Decision misapplies Chambers v. 
Nasco. by expanding inherent authority to sustain sanctions in a 
case where, unlike Chambers; (a) Appellants were denied a 
hearing as to liability for sanctions and the amount thereof; 
(b) No detailed findings were made by the District Judge; (c) the 
District Judge relied on other sanction rules— not his inherent 
authority; (d) the Panel made no findings that the sanction rules 
relied on by the District Judge were inadequate; and (e) the 
Panel cited no record references to support invoking the inherent 
authority of the District Judge and itself made no findings based 
on independent review of the record. [Pt. Ill]

5. Whether the Panel's interpretation of Chambers v. 
Nasco is in conflict with Oliveri v. Thompson. 803 F.2d 1265 
(1986) and Christianburo Garment Co. v. EEOC. 434 U.S. 412 
(1978), and represents a sub silentio repudiation of the 
"American Rule" against fee-shifting, as well as of the express 
limitations of 28 U.S.C. §1927. [Pts I, II]

6. Whether the Decision's expansion of Chambers v. 
Nasco. supra, invidiously discriminates against Appellants by 
imposing liability against them for litigation conduct of their 
attorneys— for which their attorneys were not assessed. [Pt. IV]

7. Whether the Decision conflicts with this Circuit's 
decisions in Browning Debenture Holders' Committee v. Dasa Coro..

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560 F.2d 1078 (1977), and Dow Chemical Pacific Ltd, v. Rascator
Maritime S.A., 782 F.2d 329 (1986), in sustaining the imposition 
of joint liability upon both Appellants for the full amount of 
the sanctions awarded, without differentiation of the separate 
liability of each and with no apportionment based on respective 
individual culpability. [Pt. IV]

8. Whether the Decision conflicts with this Circuit's 
decision in Faraci v. Hickev-Freeman Co.. 607 F.2d 1025 (1979) 
and invidiously discriminated against Appellant Doris Sassower 
in denying her the opportunity to make a showing as to her 
ability to pay the potential full liability for the nearly 
$100,000 sanctions imposed.

9. Whether the Decision conflicts with the specific 
language of 28 U.S.C §1927, as well as the standards of Oliveri, 
supra, and invidiously discriminates against lawyer-Plaintiff 
Doris Sassower by imposing liability upon her for litigation 
conduct when she was represented by counsel, and with no 
correlation of the award to any alleged bad-faith conduct either 
when she was unrepresented or when she was acting pro se. [Pts. 
I, IV]

10. Whether the Decision conflicts with United States 
v. Aetna Casualty & Surety Co. . 338 U.S. 366 (1949) and this 
Circuit's decision in Brocklesbv Transport v. Eastern States 
Escort, 904 F.2d 131 (1990), in that the Panel failed to rule on 
Appellants' Motion to Dismiss and threshold jurisdictional 
objection that the fully-insured Defendants are not "parties in 
interest" and that any fee award constitutes a "windfall" since

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no defense costs were incurred by them. [Pt. VI]
11. Whether the Decision conflicts with this Circuit's 

decision in New York Ass'n. for Retarded Children v. Carey. 711 
F.2d 1136 (1983), citing Hensley v. Eckerhart, 103 S.Ct. 1933,
1943 (1983), in that no contemporaneous time records were 
submitted by defense counsel and the District Judge failed to 
make specific findings identifying how he computed the amounts 
awarded, the particular services being compensated, the 
reasonableness and necessity thereof, the number of hours and 
rates being allowed, and that said rates accorded with prevailing 
market rates in the community. [Pt. VII]

ESSENTIAL FACTS FOR PURPOSES OF THIS REHEARING PETITION 
What the District Judge Did:

1. The District Judge summarily denied Plaintiffs' 
Rule 60(b)(3) motion, mischaracterizing it as "reargument". 
Although the motion was also explicitly entitled "Factual 
Rebuttal", and submitted in opposition, to Defendants' counsel 
fee/sanctions applications— with a fully documented paragraph-by­
paragraph refutation thereof— the District Judge treated such 
rebuttal as non-existent.

2. The District Judge assessed Plaintiffs $92,000 as 
counsel fee/sanctions under the Fair Housing Act, as amended 
after commencement of this action, purportedly to reimburse the 
"prevailing" fully-insured Defendants, who had not paid a dime 
out of pocket for defense of the action.

3. An alternative award was also made by the District
Judge in an identical aggregate amount under Rule 11 ($50,000)

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and 28 U.S.C. 1927 ($42,000) which would come into play solely
against Plaintiffs— not their counsel or their former co-
Plaintiff— in the event his award under the Fair Housing Act was
not upheld. The District Judge did not explain the basis of
these two allocations. As to his Rule 11 award, he stated:

"These sanctions are not directly connected with the 
fees expended by the defense attorneys, nor can they be 
prorated in that fashion. We find that the appropriate 
sanction against the Plaintiffs for commencing and 
prosecuting this meritless litigation to be in the sum 
of $50,000." (A-37-8)

Likewise, the District Judge did not correlate the $42,000 award 
under §1927 to any "costs, expenses, attorneys' fees reasonably 
incurred" as a result of any specific conduct by either Plaintiff 
(A—37). Additionally, the Rule 11 or the 28 U.S.C. §1927 awards 
made no distinction between the two Plaintiffs as to their 
separate liabilities.

4. In passing, the District Judge indicated that he 
had inherent authority under Chambers v. Nasco. supra (A-17; A- 
24). He did not state, however, that he was then exercising such 
inherent authority or the amount that would be encompassed 
thereunder were he to do so. Nor did the District Judge specify 
any conduct by either Plaintiff outside Rule 11 and §1927 which 
would require his inherent authority to address.

5. Expressly rejected by the District Judge were 
Plaintiffs' due process objections based on their asserted right 
to an evidentiary hearing before determination of liability for 
sanctions and the amount of the award (A-ll).
What the Three-Judge Panel Did:

1. The Panel affirmed the District Judge's denial of

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Appellants' Rule 60(b)(3) motion by adopting virtually verbatim 
his characterization of the motion as one for "reargument" (at 
6399)--although such mischaracterization was exposed as 
fallacious in Appellants' Brief (Br. 27-33). The Panel did not 
address Appellants' "unclean hands" defense, which that motion 
documented. Nor did the Panel rule on the significance of the 
information and documents crucial to Appellants' discrimination 
case, which the District Judge had allowed Defendants to withhold 
without sanction, including: (a) statistical data as to the 
number of Board-approved purchasers who were Jews and/or 
unmarried women; (b) completed purchase applications of all 
purchasers, with supporting processing information; and (c) 
information concerning the adoption and distribution of the Co- 
Op's "Guidelines for Admission"— explicitly applicable to 
purchases by "minorities or single women" (See Br. 16-7, 52-3; 
Reply 21-2, 26).

2. The Panel vacated the District Judge's award
under the Fair Housing Act, stating:

"...the plaintiffs' suit adequately alleged the 
elements of a prima facie case of discrimination and 
presented a factual dispute for the jury as to whether 
the plaintiffs had proven that the defendants' 
articulation of non-discriminatory reasons were 
pretextual...There is no finding that the plaintiffs 
did not believe that they had been the victims of 
discrimination. Moreover,...there is no finding that
the plaintiffs' had given a false account of the basic 
facts alleged to support an inference of discriminatory 
motive. Nor is this a case where the trial judge 
expressed the view that no reasonable jury could have 
found in plaintiff's favor but reserved ruling on a 
motion for a directed verdict and submitted the case to 
the jury simply to have a verdict in the event that a 
court of appeals might have disagreed with his 
subsequent ruling to set aside a plaintiffs' verdict, 
had one been returned..." (at 6394)

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3. Having concluded that Plaintiffs' case was not 
"meritless" or brought in bad faith, the Panel then ruled on the 
District Judge's fail-back sanction alternatives:

(a) It vacated the proposed alternative Rule 11 
award because the District Judge failed to meet the basic 
requirement for its invocation: i.e. , he did not identify any 
specific offending document (at 6395). However, the Panel did 
not remand1, saying:

"Since...the $50,000 portion of the award grounded on 
Rule 11 is equally supportable by the exercise of the 
District Court's inherent authority, we need not return 
the matter to Judge Goettel for a precise 
identification of which documents warranted Rule 11 
sanctions." (at 6395)

The Panel thus maintained intact the uncorrelated Rule 11 award, 
which the District Judge expressly predicated on his view that 
the litigation was "meritless" (A-38)— a view rejected by the 
Panel when it disallowed counsel fees under the District Judge's 
original basis, the Fair Housing Act (at 6394).

(b) Observing that §1927 was "designed to curb abusive 
tactics by lawyers", the Panel also rejected out of hand the 
District Judge's attempt to impose such sanctions against Elena 
Sassower, a non-lawyer (at 6397). Nonetheless, applying §1927 to 
plaintiff Doris Sassower because she happened to be a lawyer, it 
sustained an undefined portion of the undifferentiated $42,000

1 Cf. U.S.A. v. International Brotherhood of Teamsters, 
where this Court remanded after vacating a Rule 11 award, 
stating: "An adjustment to one of the sanctions awards... would 
probably affect the underpinnings of the other, and might lead 
the district court, in the exercise of its discretion to reduce 
or adjust the other award." at 1347. See. also, Sanko, and 
Business Guides.

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sanction against her. This disregarded the following facts: (i)
Doris Sassower had been represented by counsel for approximately 
half the period of the litigation2; (ii) The District Judge had 
never correlated any of the monetary sanction under §1927 to 
specific conduct by Doris Sassower (A-37) at any time; (iii) The 
only three instances cited by the District Judge to support his 
"finding" of bad faith by Plaintiffs sanctionable under §1927 (A- 
20-4) were unsubstantiated by the record— a fact fully detailed 
in Appellants' Brief (Br. 25-6; 33-39; 39-40). [see discussion at 
pp. 14-15 herein]

4. The Panel then sustained the balance of the
$92,000 counsel fee/sanctions award, stating:

"Judge Goettel explicitly relied, alternatively, on his 
inherent authority in the portion of his Opinion 
awarding Rule 11 sanctions, see Opinion at 11, and in 
the portion awarding section 1927 sanctions, Opinion at 
18. We may reasonably infer that he intended to base 
the $50,000 portion of the award, alternatively, on his 
inherent authority, to whatever extent it was not 
supportable by Rule 11, and to base the $42,000 portion 
of the award, alternatively on his inherent authority, 
in the event section 1927 was deemed inapplicable to 
Elena Sassower." (at 6397-8) (emphasis added)

5. No findings were made by the Panel as to what was 
being sanctioned under the $50,000 figure, the former Rule 11 
sanction award (at 6395-8) . Nor did the Panel cite any, instance 
of conduct by Elena Sassower entitling an undefined portion of 
the $42,000 sanctions under §1927 to be applied against her via 
the District Court's inherent power (at 6397-8).

2 The Panel's statement that Appellants "filed their suit 
pro se in 1988" (at 6389) is one of numerous serious factual errors. Both Appellants were then represented by counsel— as 
they were for substantial periods thereafter.

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6. The Panel did not address Appellants' due process 
objections based on their asserted right to an evidentiary 
hearing as to liability for sanctions and the amount thereof, as 
well as to an impartial judge.

7. The Panel failed to rule on Appellants' November 
29, 1991 Motion to Dismiss, which was "referred to the panel that 
will hear the appeal" (Order dated December 4, 1991, Ex. "A").

POINT 1: The District Judge did not invoke his 
inherent authority to fee—shift litigation costs which he was in 
a position to do, had he deemed it appropriate. That the 
District Judge deemed it inappropriate can be inferred from the 
fact that although he was uncertain that his fee-shifting award 
under the Fair Housing Act would be upheld, he nonetheless 
explicitly relied on that Act— not his inherent authority to 
shift litigation costs (A-34-7).

Even in devising a fail-back to the Fair Housing Act, 
the District Judge did not reach out to his inherent authority to 
shift fees under the "bad faith exception to the American Rule". 
Rather, he proceeded under a combination of Rule 11 and §1927 (A- 
37-8), neither of which are fee-shifting provisions.

These two distinct decisions by the District Judge: (1) 
to use the Fair Housing Act, and (2) to devise a Rule 11/§1927 
alternative must be seen as an informed assessment by him that 
the record would not permit him to meet the stringent standards 
for fee-shifting via his inherent authority, notwithstanding the 
recent Supreme Court decision in Chambers, which he cited.

The District Judge cited Oliveri v. Thompson for the

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proposition that bad-faith is a prerequisite to §1927 sanctions 
(A-20) and had before him the standard for fee-shifting 
enunciated therein:

"To ensure... that fear of an award of attorneys' fees 
against them will not deter persons with colorable 
claims from pursuing those claims, we have declined to 
uphold awards under the bad-faith exception absent 
both 1'clear evidence' that the challenged actions 'are 
entirely without color and [are taken] for reasons of 
harassment or delay or for other improper purposes,'' 
and 'a high degree of specificity in the factual 
findings of rthe] lower courts.'" Oliveri. at 1272 (citing 2nd Circuit cases) (emphasis added)

See also McMahon v. Shearson/American Express, at 23-4. The
extent to which the District Judge did not meet the standards
required for an award under inherent authority is highlighted by
the only instances in his Opinion as showing Plaintiffs' alleged
bad-faith, cited in the context of §1927 sanctions (at A-14-7).

Because the Decision repeats these instances (at 6391- 
2) to support fee-shifting for the totality of the litigation, 
rather than specific conduct to be sanctioned under §1927, they 
are herein set forth to demonstrate their inaptness for
sanctions under any theory:
(a) "plaintiffs 'attempted to communicate directly with the
defendants'" (at 6391): The record shows (AA-47) that the
letter to Defendants was not sent by either Elena Sassower or Doris Sassower, but by John McFadden, the former co-Plaintiff and 
seller of the subject apartment3 for the stated purpose of effectuating a settlement.
(b) "the Magistrate... had recommended dismissal of thecomplaint because of Doris Sassower..." (at 6391-2): The record
shows (see discussion and record references cited in Br. 33-39) 
that the Magistrate's recommendation and the District Judge's 
Opinion based thereon were factually unjustified, rendered

3 In fact, the District Judge's Opinion acknowledges Mr. 
McFadden's authorship of the letter to Defendants— the 
"impropriety" of which it acknowledged "can be overlooked" (A-32).

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without due process, and even without a formal motion for Rule 37 
sanctions ever made by defense counsel. The lack of due process 
precludes its use as a basis for a "bad faith" finding against 
her, a fact recognized by Chambers v. Nasco:

"A court must... comply with the mandates of due 
process...in determining that the reguisite bad faith 
exists..., see Roadway Express, supra. at 767, 100 
S.Ct. at 2464." Chambers at 2136

(c) Doris Sassower's "role in assisting another attorney " 'in conducting incredibly harassing depositions *", and "'particularly 
shocking and abusive Questioning1" (at 6392): Examination of 
the transcript shows this statement to be factually false (Br. 
39-40), the guestions were not improper, and Doris Sassower's 
entire participation consisted of two wholly innocuous one-line comments: (1) "She doesn't know when she was born." (AA-48); and 
(2) "Are you serious?" (AA-59).

As a matter of law, the foregoing three instances do 
not show bad faith to constitute a basis for §1927 sanctions, 
which is the context in which they were cited by the District 
Judge, nor do they constitute a basis upon which the Panel could 
activate the District Judge's inherent power against either 
Plaintiff, Roadway Express. Inc., at 2465. Indeed, as this Court 
recognized in Dow Chemical Pacific. at 345, such isolated 
instances, even were they legitimate, are too inconsequential to 
sustain an award representing the totality of three year's 
litigation costs.

Since the District Judge cited no other specific 
instances of alleged "bad faith", the exception to the "American 
Rule" cannot be sustained on the basis of his Opinion— and the 
Panel cited no basis in the record. Indeed, the Decision does 
not cite the record once.

POINT II: An award to Defendants under the Housing 
Act involves a lesser standard than under inherent power, as 
Christianburg itself makes clear. Christianburg requires only



that an action be "meritless" or without foundation. It does not
require a showing that the action was brought in bad faith, which
awards under a court's inherent power require:

[I]n enacting [the fees provision] Congress did not 
intend to permit the award of attorney's fees to a 
prevailing defendant only...where the plaintiff was 
motivated by bad faith...[I]f that had been the 
intent...no statutory provision would have been 
necessary, for it has long been established that even 
under the American common-law rule attorney's fees may 
be awarded against a party who has proceeded in bad faith." 434 U.S. at 419.

Here, the Panel held that there was no basis to find 
that the action was meritless or that the Plaintiffs "did not 
believe that they had been the victims of discrimination", i.e. 
that they had brought the action in bad faith. Thus, it was 
inconsistent with Christianburg and Chambers. as well as Oliveri 
and other precedents of this Court, to uphold fee-shifting based 
on inherent power that must rest on a bad-faith finding.

POINT III: The Panel turned to inherent authority as
an alternative sanctioning source, with no finding that the 
sanctioning rules were inadequate. As the five—four majority in 
Chambers stated:

"...when there is bad-faith conduct in the course of 
litigation that could be adequately sanctioned under the rules, the court ordinarily should rely on the 
rules rather than the inherent power." at 2136.

This view was expressed even more strongly by three of the four
dissenting justices (including the Chief Justice):

"Inherent powers are the exception, not the rule, and 
their assertion requires special justification in each 
case...Inherent powers can be exercised only when necessary, and there is no necessity if a rule or 
statute provides a basis for sanctions. It follows 
that a district court should rely on text-based 
authority derived from Congress rather than inherent

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power in every case where the text-based authority 
applies." at 2143.

The fact that the Panel did not find that the 
sanctioning rules were not "up to the task" Chambers. 2126, 2136. 
is further reflected by its express statement in not remanding 
the $50,000 Rule 11 sanction award to the District Judge so that 
he might specify what "offending documents" he had in mind4 (at 
6395).

Moreover, the Panel's ruling that §1927 could not be 
used against Elena Sassower was irrelevant for purposes of 
invoking inherent authority--since no sanctionable conduct by her 
was cited by either the District Court or the Panel. Under such 
circumstance, Elena Sassower's non-lawyer status was irrelevant, 
there being nothing to sanction in any case.

Additionally, unlike Chambers, Appellants were denied 
their right to a hearing before sanctions liability and the 
$92,000 sum were awarded. Thus absent was the most fundamental 
prereguisite for invocation of inherent authority, reiterated by 
Chambers, 2135, in no uncertain terms: "due process".

Also distinguishable from Chambers, the District Judge 
did not invoke his recognized inherent authority, but chose 
instead to proceed under non-fee-shifting sanctioning provisions 
and further, unlike Chambers, made no detailed findings to fee- 
shift a totality of litigation costs.

POINT IV: In approving fee-shifting under inherent

4 The Panel's speculation that the District Judge "probably 
had in mind principally the complaint" (at 6395) is erroneous 
since the complaint was signed by neither Plaintiff.

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power, the Decision conflicts with Hall v. Cole. cited by
Browning. at 1089, for the proposition that "bad faith is
personal". The failure to differentiate the respective
liabilities of the Appellants and to hold them liable for
conduct of lawyers who were representing them conflicts also with
Greenberg v, Hilton, at 939, and Calloway v. Marvel, at 1474.
Moreover, Browning specifically held that:

"in an action not itself brought in bad faith, an award 
of attorneys' fees should be limited to those expenses 
reasonably incurred to meet the other party's 
groundless, bad faith procedural moves.", at 1089.

POINT_V: As Chambers points out, at 2132— citing
Hazel-At las--"fraudulently begotten judgments" are such a 
defilement of the judicial process that a court can vacate it sua 
sponte. and can even "conduct an independent investigation in 
order to determine whether it has been the victim of fraud". 
These powers exist apart from its duty to adjudicate motions 
properly before it under Rule 60(b)(3).

Neither the Panel nor the District Judge dealt with the 
fraud issues of Appellants' 60(b)(3) motion because they 
erroneously viewed the motion as "reargument"^. Such view—  
totally unsupported by the record (Br. 27-33)— would not relieve 
either tribunal from its duty to independently ascertain the 
validity of the fraud allegations, documented by Appellants'

5 This Court considered "the opportunity to litigate" the 
issue of fraud and misrepresentation to be critical and in Leber- 
Krebs. supra. reversed Judge Goettel for summarily denying such 
opportunity. Judge Goettel— the District Judge herein— similarly 
denied Appellants their right to an adjudication of Defendants' 
fraudulent conduct— a fact detailed and documented in the opening 
pages of their Rule 60(b)(3) motion (Aff. A: Pt 2: pp. 7-11).

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uncontroverted motion. Indeed, such invocation of inherent power
was mandated because the parties Appellants charged with fraud 
were seeking to profit from it by a fee award.

POINT VI: The Panel's failure to decide the threshold
jurisdictional question raised in Appellants' separate Motion to
Dismiss, as well as in their Reply Brief (pp. 2-8), conflicts
with Brocklesbv Transport, citing United States v.— Aetna:

"...Under federal law, if an insurer has compensated an 
insured for an entire loss, the insurer is the only 
party— in—interest, and must sue in its own name. . ." 
Brocklesbv. at 133 (emphasis added).

POINT VII: The Decision conflicts with New York
Ass'n. for Retarded Children v. Carey, at 1147:

"...contemporaneous time records are a prerequisite 
for attorney's fees in this Circuit. See Hensley v. 
Eckerhard. . . .we. . .convert our previously expressed preference for contemporaneous time records...into a 
mandatory requirement, as other Circuits have done..."

There were no contemporaneous time records submitted by 
defense counsel (Br. at 43)— as further conceded by their 
evasiveness and silence at oral argument when the question was 
specifically asked by Judge Newman, the author of Carey. 
Moreover, the $92,000 award confirmed by the Panel was devoid of 
all specificity— failing even to set forth the number of hours 
compensated and the rates allowed (A-34-8; Br. 43-5, 48).

CONCLUSION
For the reasons stated above, it is respectfully prayed 

that a rehearing, en banc. be granted so that the Decision may be 
corrected to conform with the factual record and controlling law.

Respectfully submitted,
DORIS L. SASSOItfER, Pro Se ELENA RUTH SASSOWER, Pro Se



4/90 United States Court ol A p p e a ls  
FOR THE SECOND CIRCUIT'X

SASSOWER,
Appella

-v-
FI ELD,

l/x r  ih o r l  title

M OTION BY: (Name, address and tel. no. of law firm  and o f 
attorney in charge o f case)

Elena Ruth Sassower, Pro Se 
16 Lake St., Apt. 2C White Plains
Doris L. Sassower, Pro Se 
283 Soundview Avenue, White Plains

Each motion must be 
acocrpanied by a support 
affidavit.

91-7891
O r t ,  i n  fNyresh+r

NOTICE OF MOTION
state type o f  m otion

1060-3

Has consent of opposing counsel:
A been sought?
B been obtained?

Has service been effected?
Is oral argument desired1 

(Substantive motions only)
Requested return date: December

(See Second Circuit Rule 27(b))
Has argument date of appeal been set:

A by scheduling order?
B by firm  date of argument notice?
C. I f  Yes, enter date:_________________

10606

£e4«r--a-L—and- substantive -
TJ^>1: l  G f^am c, address and tel no of law

firm and o f attorney in charge o f  case)
Lawrence Glynn, Esq. 914-761-040' 
Marshall, Conway & Wright 

212-619-4444 
Dennis Bernstein, Esq.

914-779-9099
□  Yes
□  Yes
rsr'Ves

LJ No 
R 'N o
□  No 
t l  No

□  Yes □  No

5, 1991

□  Yes
□  Yes

□  No
□  No

EMERGENCY MOTIONS, MOTIONS FOR STAYS It 
INJUNCTIONS PENDING APPEAL
Has request for relief been made below1 

(See F R A P Rule A)
Would expedited appeal eliminate need 

for this motion?
If  No, explain why not:
jurisdiction is a threshold question 
which must be determined prior to
W ill the parties agree to m alM M rftO C t ion of appeal 

status quo until tfie motion is heard? □  Yes □  No

□  Yes R^No

Judge or agency whose order is being appealed:

Judge Gerard L. Goettel
Brief statement of the relief requested:

New Scheduling Order 
Vacate Judgment for counse

Complete Page 2 of This Form subject
1 fees/sanctions for 
matter jurisdiction

lack of

By: (Signature o f attorney) Appearing for: (Name o f  party)

Signed name must be printed beneath J f , ------- Date

( i f U e h t
---- _---------------------------------------------------------------  ORDER -----------
Kindly leave this space blank

AnpCltant or Petitioner: 
fa P la in t if f  □  Defendant 
Appellee or Respondent:
□  P la in tiff □  Defendant

IT IS HEREBY ORDERED that the motion be and it hereby is

M o-b on  an a d d i t i o n a l  6("bfne
Y b o i i o n  f d v a c a t e  o{  f c e s

\\ea< dW apv^l

\S deDied and
l-i ( r i f e ,  iedT u - t t ix .  1 ^ i l l

cSk "S9 "
DEC 0 4 1991 -------------------------------

Date f’.WruH Jn4fe

" 0 ' \ ^ 6/V- &fvirr " C  ■' "if afvoii tehstfit



03
*

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 954— August Term 1991
Argued: February 28, 1992 Decided: August 13, 1992 

Docket No. 91-7891

----- *

ELENA RUTH SASSOWER, DORIS L. SASSOWER,
Plaintiffs-Appellants,

KATHERINE M. FIELD, CURT HAEDKE, LILLY HOBBY, 
WILLIAM IOLONARDI, JOANNE IOLONARDI, ROBERT 
RIFKIN, individually, and as M em bers o f  the Board o f  
D irectors o f  16 Lake Street O w ners, In c ., HALE 
APARTMENTS, D e SISTO MANAGEMENT INC., 16 
LAKE STREET OWNERS, INC., ROGER ESPOSITO, ind i­
v idually , and as an o fficer  o f  16 L ake Street O w ners,

*nc'’ Defendants-Appellees.

Before:
*

LUMBARD, NEWMAN and WINTER,
Circuit Judges.

♦  —
Appeal from a supplemental judgment of the District 

Court for the Southern District of New York (Gerard L.

6387



Goettel, Judge) requiring pro se plaintiffs to pay defen­
dants’ attorney’s fees and expenses of $93,350 as a sanc­
tion for the vexatious conduct of unsuccessful litigation 
claiming housing discrimination.

Affirmed as to liability, affirmed as to amount with 
respect to Doris Sassower, and vacated and remanded as 
to amount with respect to Elena Sassower.

♦

ELENA RUTH SASSOWER, plaintiff-appellant 
pro se , White Plains, N.Y.

DORIS L. SASSOWER, p la in tiff-appellan t pro 
se, W hite P lains, N.Y.

DENNIS T. BERNSTEIN, Tuckahow, N.Y., for 
defendant-appellee Hale Apartments.

LAWRENCE J. GLYNN, White Plains, N.Y ., for 
defendants-appellees Field, Haedke, 
Hobby, William Iolonardi, Joanne 
Iolonardi, Rifkin, & 16 Lake St. Owners, 
Inc.

STEVEN L. SONKIN, New York, N.Y. (Mar­
shall, Conway & Wright, New York, 
N.Y., on the brief), for defendants- 
appellees DeSisto Management, Inc. & 
Esposito.

(Julius L. Chambers & Charles Stephen Ral­
ston, New York, N.Y., submitted an ami­
cus curiae brief for NAACP Legal 
Defense & Educational Fund, Inc.)

♦

6388

JON O. N e w m a n , Circuit Judge:

This appeal from a supplemental judgment imposing 
sanctions upon two unsuccessful plaintiffs for the vexa­
tious conduct of litigation involves the extraordinary rem­
edy of an award of nearly $100,000 assessed against pro 
se litigants, occasioned by extraordinary conduct. The 
judgment was entered by the District Court for the South­
ern District of New York (Gerard L. Goettel, Judge), 
requiring Doris L. Sassower and her daughter, Elena Ruth 
Sassower, to pay defendants’ attorney’s fees and expenses 
of $93,350 at the conclusion of their unsuccessful suit 
claiming housing discrimination. We conclude that Judge 
Goettel was abundantly justified in imposing sanctions 
against both plaintiffs and that the amount imposed upon 
Doris Sassower was fairly determined, but that the 
amount of the sanction imposed on Elena Sassower must 
be reconsidered in light of her limited financial resources.

Facts

Doris and Elena Sassower filed their suit pro se in 
1988, alleging violation of the Federal Fair Housing Act, 
42 U.S.C. §§ 3601-3631 (1988), and other federal and 
state law claims. At various stages of the litigation, they 
were represented by counsel. Doris Sassower was then a 
member of the bar, although her current status is in some 
doubt. See Attorney Sanctioned by Court of Appeals, 
N.Y.L.J. (Sept. 11, 1991). Defendants include the corpo­
rate owner of a cooperative apartment building in White 
Plains, New York, and directors and an officer of the cor­
porate owner. The plaintiffs alleged that the defendants 
had discriminated against them by rejecting their appli­
cation to acquire an apartment in the building through 
purchase of coop stock shares and assignment of a pro-

6389



prietary lease from a former occupant. Plaintiffs alleged 
discrimination on account of their status as single, Jewish 
women. Defendants contended that the rejection had noth­
ing to do with the status of the plaintiffs, but was based 
primarily on the owner’s disapproval of the use to be 
made of the apartment. While approval was being sought, 
the apartment was occupied by George Sassower, the for­
mer husband of Doris and the father of Elena.1 Evidence 
at trial indicated that he was arrested at the apartment for 
what the District Court understood was the illegal practice 
of law. Evidence also indicated that the occupants of the 
apartment building included Jews and single women, a 
circumstance tending to refute plaintiffs’ claim concern­
ing the basis for their rejection.

After some of the defendants were dismissed on motion 
for summary judgment, see Sassower v. Field, 752 F. 
Supp. 1182 (S.D.N.Y. 1990); Sassower v. Field, 752 F. 
Supp. 1190 (S.D.N.Y. 1990), the case was tried before a 
jury for seven days. The jury answered specific inter­
rogatories, rejecting all of plaintiffs’ claims, including the 
claim that the religion, gender, or marital status of the 
plaintiffs was a reason for the rejection of their applica­
tion to purchase the apartment.

After entry of judgment for the defendants, the District 
Court granted the defendants’ request for counsel fees and 
costs as prevailing parties pursuant to the Fair Housing 
Act, 42 U.S.C. § 3613(c)(2) (1988). In the alternative the 
Court imposed sanctions against the plaintiffs pursuant to 
Fed. R. Civ. P. 11, 28 U.S.C. § 1927 (1988), and the 
Court’s inherent power “because of their tactics of delay, 
oppression and harassment.” District Court opinion of 
August 12, 1991 (hereafter “Opinion”), at 18. Judge Goet-

1 George Sassower is a disbarred attorney whose proclivity for 
frivolous and vexatious litigation has repeatedly resulted in sanctions.

6390

tel carefully reviewed the extraordinary pattern of vexa­
tious litigating tactics engaged in by the plaintiffs during 
the pendency of the litigation and concluded that they had 
acted “in bad faith, vexatiously and unreasonably.” Id. at 
14 (footnotes omitted). As he stated, “The Sassowers pur­
sued this litigation as if it was a holy war and not a court 
proceeding, managing these proceedings in a fashion that 
vexatiously, wantonly and for oppressive reasons 
increased the legal fees enormously.” Id. at 13.

As summarized by the District Court, the plaintiffs 
conduct included the following:

They made several unsupported bias recusal motions 
based upon this court’s unwilling involvement in 
some of the earlier proceedings initiated by George 
Sassower. . . . There were continual personal 
attacks on the opposing parties and counsel. . . .  In 
virtually every instance where a court ruling was not 
satisfactory to them, plaintiffs routinely made a 
motion to reargue. In addition, plaintiffs filed two 
improper interlocutory appeals which were subse­
quently withdrawn. . . . Finally, they have now filed 
a mammoth motion for a new trial and sanctions 
against opposing counsel which seeks to reargue vir­
tually every aspect of the litigation for the third time.

Opinion at 13-14 (citations and footnotes omitted). The 
District Judge also noted that the plaintiffs “attempted to 
communicate directly with the defendants rather than 
through counsel in order to force through their settlement 
demands.” Id. at 14 n.10. Previously the Magistrate Judge 
supervising discovery had recommended dismissal of the 
complaint because of Doris Sassower’s egregious failure 
to make discovery as directed by the Court. The District 
Judge, though noting misbehavior warranting sanctions,

6391



declined to dismiss because the complaint would still be 
pursued by Elena. He nonetheless observed:

It is patently clear that Doris L. Sassower has been 
guilty of attempting to manipulate the court by 
appearing as attorney on those matters which could 
assist her case while refusing to be deposed herself, 
claiming health problems. We were compelled at an 
earlier time to allow [her] to appear pro se and to 
relieve her attorney because of the law of this Cir­
cuit, even though we could foresee the type of 
manipulation that has frequently occurred.

Id. at 16. The Court also noted her recalcitrance at her 
own deposition and her role assisting another attorney “in 
conducting incredibly harassing depositions of certain of 
the defendants.” Id. at 17. Some of that questioning 
included what the Court termed “particularly shocking 
and abusive” questioning of a Black member of the coop’s 
board of directors, questioning laced with racial innuendo. 
Id. at 22.2 Repeatedly throughout the litigation, the Dis­
trict Judge cautioned the plaintiffs that their vexatious and 
harassing conduct, if continued, was likely to incur mon­
etary sanctions at the conclusion of the case.

2 Judge Goettel noted that Doris Sassower’s vexatious tactics had been 
observed by other courts. He quoted the following comments of Justice 
Samuel G. Fredman of the New York Supreme Court, County of West­
chester:

From the relatively simple molehill of potential issues which 
could possibly arise from such conduct, Sassower has created a 
mountain of legal, factual and even political abracadabra. Her 
actions have taken an inordinate amount of this Court's time and 
tested its patience beyond the wildest imagination. . . . [M]onths 
of actual court time [were] spent in permitting Sassower to pre­
serve her rights by trick and chacanery beyond the concept of most 
any lawyer who practices in our courts. She is indeed sui generis 
in her actions . . . .

Id. at 14-15 n .l l  (quoting Breslaw v. Breslaw, Slip Op., Index No. 
22587/86 at 2, 12 (June 24, 1991)).

6392

The District Judge awarded to the defendants a total of 
$92,000 in fees and $1,350 in expenses, and imposed lia­
bility for these amounts jointly upon Doris and Elena Sas­
sower. Plaintiffs appeal from the award of attorney’s fees 
and from the denial of their motion for a new trial and 
their request to have sanctions imposed on the defendants.

Discussion

I. Attorney’s Fees
A. Fair Housing Act. At the time the complaint in this 

case was filed, the Fair Housing Act authorized an award 
of attorney’s fees only to a prevailing plaintiff. 42 U.S.C. 
§ 3612(c) (1982). The current version, enacted in 1988, 
Pub. L. No. 100-430, § 8(2), 102 Stat. 1633 (1988), 
authorizes fees for a prevailing party. 42 U.S.C. 
§ 3613(c)(2) (1988). The District Court, noting that the 
plaintiffs had amended their complaint twice after the 
effective date of the new fee-shifting provision, awarded 
fees incurred by the defendants after the effective date. 
Judge Goettel determined these fees to total $92,000, plus 
$1,350 of expenses. The rationale for awarding defen­
dants their attorney’s fees to this extent was not simply 
that the defendants were “prevailing part[ies]” but that the 
lawsuit was “totally meritless.” Opinion at 7.

Even if we assume for the argument that the amended 
fee-shifting provision could be applied to a lawsuit filed 
before its effective date, to the extent of shifting fees 
incurred after its effective date, we cannot agree that fees 
could be awarded under the Fair Housing Act. That 
statute, like other civil rights fee provisions, permits an 
award of fees to prevailing defendants only upon a show­
ing that the suit is “frivolous, unreasonable, or without

6393



foundation.” See Christiansburg Garment Co. v. EEOC, 
434 U.S. 412, 421 (1978). As the District Judge recog­
nized, the plaintiffs’ suit adequately alleged the elements 
of a prima facie case of discrimination and presented a 
factual dispute for the jury as to whether the plaintiffs had 
proven that the defendants’ articulation of non-discrimi- 
natory reasons for their actions was pretextual. See Sas- 
sower v. Field, 752 F. at 1189-90.

It is arguable that even a civil rights plaintiff must bear 
the risk of an award of defendant’s attorney’s fees when 
a jury resolves factual disputes in favor of a defendant 
and a judge concludes that the claim, though requiring 
jury consideration, was entirely insubstantial. We have 
upheld fee-shifting after a civil rights bench trial where 
the plaintiff’s testimony was found to have been “an 
unmitigated tissue of lies.” See Carrion v. Yeshiva Uni­
versity, 535 F.2d 722, 728 (2d Cir. 1976). In the pending 
case, however, the essential issue was not whether the 
plaintiffs were credible in their account of the factual cir­
cumstances; it was whether the defendants’ explanations 
for their actions were legitimate or pretextual. There is no 
finding that the plaintiffs did not believe that they had 
been the victims of discrimination. Moreover, though 
there were various disputes as to some details of the deal­
ings between the plaintiffs and the defendants, there was 
no finding that the plaintiffs’ had given a false account of 
the basic facts alleged to support an inference of dis­
criminatory motive. Nor is this a case where the trial 
judge expressed the view that no reasonable jury could 
have found in plaintiff’s favor but reserved ruling on a 
motion for a directed verdict and submitted the case to the 
jury simply to have a verdict in the event that a court of 
appeals might have disagreed with his subsequent ruling 
to set aside a plaintiffs’ verdict, had one been returned. In

6394

these circumstances, to award defendants their attorney’s 
fees simply because the jury found in their favor and the 
trial judge found the verdict overwhelmingly supportable 
risks imposing too great a chilling effect upon the pros­
ecution of legitimate civil rights lawsuits. We cannot sus­
tain the fee award under the Fair Housing Act.

Though the outcome of the lawsuit adverse to the plain­
tiffs is an insufficient basis to require them to pay defen­
dants’ attorney’s fees under the Fair Housing Act, 
substantial issues remain as to whether the plaintiffs are 
liable for such fees for the manner in which they con­
ducted the litigation.

B. Rule 11. Recognizing the possibility that the fee 
award might not be sustainable under the Fair Housing 
Act, Judge Goettel grounded portions of the award alter­
natively upon Fed. R. Civ. P. 11, the Court’s inherent 
authority, and 28 U.S.C. § 1927. Rule 11 applies, as the 
District Court recognized, to those who sign a “pleading, 
motion, and other paper” without making “reasonable 
inquiry [that] it is well grounded in fact.” Fed. R. Civ. P. 
11. Judge Goettel assessed $50,000 as a Rule 11 sanction. 
However, he did not specify the documents the signing of 
which violated the Rule. He probably had in mind prin­
cipally the complaint, though he also noted that “[djuring 
the course of this lengthy proceeding, both of [the plain­
tiffs] signed numerous documents.” Opinion at 11. Since 
we conclude below that the $50,000 portion of the award 
grounded on Rule 11 is equally supportable by the exer­
cise of the District Court’s inherent authority, we need not 
return the matter to Judge Goettel for a precise identifi­
cation of which documents warranted Rule 11 sanctions.

C. 28 U.S.C. § 1927. As a further alternative to a fee 
award under the Fair Housing Act, Judge Goettel

6395



grounded a portion of the fee award, $42,000, on 28 
U.S.C. § 1927, which permits imposition of fees upon 
“[a]ny attorney or other person admitted to conduct cases 
in any court of the United States” who “multiplies the 
proceedings in any case unreasonably and vexatiously.” 
28 U.S.C. § 1927 (1988). This $42,000 is in addition to 
the $50,000 awarded under Rule 11. Unquestionably, the 
conduct of the plaintiffs warranted an award under section 
1927. The issue posed by this portion of the award is 
whether section 1927 sanctions may be imposed on pro se 
litigants, or at least on a pro se litigant who was a lawyer 
at the time of the litigation.

Judge Goettel ruled that section 1927 may be applied to 
pro se litigants, including non-lawyers. The Ninth Circuit 
has adopted this position. See Wages v. I.R.S., 915 F.2d 
1230, 1235-36 (9th Cir. 1990), cert, denied, 111 S. Ct. 
986 (1991). We disagree. Section 1927 applies to any 
“attorney or other person admitted to conduct cases” in a 
federal court. Judge Goettel considered the pro se plain­
tiffs to be “person[s] admitted to conduct cases” because 
they had been granted permission to proceed pro se. Opin­
ion at 17. But the word “admitted” in this context sug­
gests application to those who, like attorneys, gain 
approval to appear in a lawyerlike capacity. Moreover, 
parties generally have a right to appear pro se. See 28 
U.S.C. § 1654 (1988); O’Reilly v. New York Times Co., 
692 F.2d 863, 867 (2d Cir. 1982). Though the Sassowers’ 
former attorney needed and obtained permission to be 
relieved, the granting of his motion left the plaintiffs free 
to proceed pro se, without further order of the Court.

Moreover, it is unlikely that Congress intended the 
phrase “other person” to include a person lacking lawyer- 
like credentials. The prior version of the statute read “any 
attorney, proctor, or other person admitted.” See Motion

6396

Picture Patents Co. v. Steiner, 201 F. 63, 64 (2d Cir. 
1912). This phrasing also suggests that “other person” 
covers those admitted to act in a lawyerlike capacity. We 
also note that the Supreme Court recently recounted, with­
out disagreement, a District Court’s assertion that section 
1927 “applies only to attorneys.” See Chambers v. 
NASCO, Inc., I l l  S. Ct. 2123, 2131 (1991). This refer­
ence implies approval of the District Court’s view, since 
there would have been no need for the Supreme Court to 
consider the larger question of the trial judge’s inherent 
authority to sanction if section 1927 had applied to the 
non-lawyer.

Though section 1927 will not support sanctions against 
Elena Sassower, it is available for use against Doris Sas- 
sower, who, though acting pro se, was a lawyer, at least at 
the time of this litigation. Since section 1927 is designed 
to curb abusive tactics by lawyers, it should apply to Atty. 
Sassower notwithstanding the fact that her only client in 
this matter was herself.

As an alternative to reliance on section 1927, Judge 
Goettel grounded the $42,000 portion of the sanctions on 
the Court’s inherent authority, as he had done, alterna­
tively, with the $50,000 portion based on Rule 11. We turn 
then to that basis of authority.

D. Inherent Authority. Judge Goettel explicitly relied, 
alternatively, on his inherent authority in the portion of 
his Opinion awarding Rule 11 sanctions, see Opinion at 
11, and in the portion awarding section 1927 sanctions, 
Opinion at 18. We may reasonably infer that he intended 
to base the $50,000 portion of the award, alternatively, on 
his inherent authority, to whatever extent it was not sup­
portable by Rule 11, and to base the $42,000 portion of 
the award, alternatively on his inherent authority, in the

6397



event section 1927 was deemed inapplicable to Elena 
Sassower.

The Supreme Court has made clear that a district court 
has inherent authority to sanction parties appearing before 
it for acting in bad faith, vexatiously, wantonly, or for 
oppressive reasons. See Chambers v. NASCO, Inc., I l l  S. 
Ct. at 2133. Having reviewed the course of the litigation 
and the numerous instances of entirely vexatious and 
oppressive tactics engaged in by the plaintiffs, we agree 
with Judge Goettel that his inherent authority was prop­
erly used to sustain these portions of the award.

E. Amount of Sanctions. We have ruled that when a 
court awards defendant’s attorney’s fees, it must take into 
account the financial circumstances of the plaintiff. See 
Farad v. Hickey-Freeman Co., 607 F.2d 1025, 1029 (2d 
Cir. 1979). No concern need be raised with respect to 
Doris Sassower. Judge Goettel explicitly relied on trial 
testimony that revealed that she was living in “a two mil­
lion dollar mansion.” Opinion at 10 n.6. Though the value 
of an expensive home does not necessarily demonstrate 
ability to pay $93,350 in sanctions, Doris Sassower has 
made no claim on appeal that the sanction is beyond her 
means. With respect to Elena Sassower, however, Judge 
Goettel explicitly stated that he did “not believe that she 
is financially able to respond in the payment of attorneys’ 
fees and sanctions.” Opinion at 19 (footnote omitted). He 
noted that she had claimed during the trial to be indigent. 
Nevertheless he imposed liability for the fees jointly upon 
Elena and her mother, though expressing his expectation 
that “these costs will probably have to be borne solely by” 
the mother. Opinion at 19.

Though we conclude that the Judge was entitled to find 
both mother and daughter liable for sanctions, we must

6398

vacate the imposition of joint liability for the full amount 
upon Elena, in the absence of evidence that her financial 
resources permit an award of that size. Upon remand, the 
District Court may assess against her such portion of the 
award as is appropriate in light of her resources.

Though the amount of the sanction that we fully uphold 
with respect to Doris Sassower is large, it is in fact only 
a portion of the fees expended by defendants that could 
have been assessed in view of the plaintiffs’ conduct. 
Judge Goettel chose to award only those fees incurred 
after the effective date of the amended fee provision of 
the Fair Housing Act. Since the fee award is being sus­
tained on the basis of authority other than the Act, the 
selection of this date as a starting point for fees operates 
as a fortuitous benefit for the plaintiffs.

II. New Trial
Continuing their vexatious and harassing tactics, the 

plaintiffs submitted to Judge Goettel, several months after 
the trial, a motion for a new trial under Rule 60(b)(3). The 
motion was accompanied by several hundred pages of 
supporting papers and a thousand pages of exhibits. In the 
main, the motion is nothing more than a reargument of 
numerous claims made prior to and during the trial, 
including factual issues resolved against the plaintiffs by 
the jury. Judge Goettel acted well within his discretion in 
denying the motion.

We have considered all of the other issues raised by 
appellants and find them totally lacking in merit.

6399



Conclusion

The denial of plaintiffs’ motion for new trial and for 
sanctions against the defendants is affirmed; the supple­
ment judgment awarding sanctions against the plaintiffs 
is affirmed as to liability, affirmed as to amount with 
respect to Doris Sassower and vacated and remanded as to 
amount with respect to Elena Sassower.

6400