City of New York v. Richardson Complaint

    No. 86-1408

In T he

fttsprem? (Em rrt xif tl?r Ih titrh  g ’tatrii
October Term, 1986

Pearlie Mai Haynie, and her counsel,
Avon N. Williams, J r., Esquire,

v Petitioners,

Ross-Gear Division of TRW, Inc. and 
United Automobile, Aerospace & Agricultural 

Implement Workers of America, Local 342,
Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Sixth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

Mark A llen  
L y n n  Agee

Counsel of Record 
Gerber, Gerber & Agee 
7th Floor, 65 Union Avenue 
Memphis, Tennessee 38108 
(901) 523-0019
JORDEN ROSSEN
Nancy  S ch iffer  
UAW L egal Departm ent  
8000 East Jefferson Avenue 
Detroit, Michigan 48214 
Attorneys for Respondents

W i l s o n  - E p e s  P r i n t i n g  C o . ,  In c . - 7 8 9 - 0 0 9 6  - Wa sh in g to n , d . c . 2 0 0 0 1

R E C E IV E D 1987



T A B L E  O F C O N TEN TS
Page

REASONS WHY THE WRIT SHOULD BE DENIED.. 1

I. The Decision Below Is In Conformity With This 
Court’s Decision In Roadway Express v. Piper,
447 U.S. 752 (1980).......    1

II. The Decision Below Adopts The Prevailing Rule
On Imposing Sanctions Against Attorneys Un­
der 28 U.S.C. § 1927 ........................ ..................... . 4

III. The Decision Below Does Not Conflict With 
Counsel’s Ability To Comply With The Code Of 
Professional Responsibility, Nor Is It A Matter 
Of National Importance ............................    7

CONCLUSION.............    8

APPENDIX ...............       la



TABLE OF AUTHORITIES
CASES: Page

Blair v. Shenandoah Women’s Center, Inc., 757
F.2d 1435, 1436 (4th Cir. 1985) ..........................  5

In Re: Oximetrix, Inc., 748 F.2d 6,37 (Fed. Cir.
1984) ........ ............. ....................................................  6

Jones v. Continental Corp., 789 F.2d 1225 (6th
Cir. 1986) ................................. ............... ............. . 3, 4

Lewis v. Brown & Root, Inc., 711 F.2d 1287, 1289,
1292 (5th Cir. 1983) ........................ ......................  3

Limerick v. Greenwald, 749 F.2d 97 (1st Cir.
1984) ........        5

McConnel v. Shurak, 774 F.2d 746 (7th Cir. 1985).. 4
Morris v. Adams Millis Corp., 758 F.2d 1372 (10th

Cir. 1985) .................................................................... 6
Roadway Express v. Piper, 447 U.S, 752 (1980) ....passim 
Sturgeon v. Airborne Freight Corp., 778 F.2d 1154

(5th Cir. 1985)..............       6
Tedeschi v. Barney, 757 F.2d 465 (2nd Cir. 1985).. 5
Looms v. Leone, 777 F.2d 465, 471 (9th Cir. 1985).. 4
Trecker v. Scag, 747 F.2d 1176 (7th Cir. 1984).... 5
United States v. Blodgett, 709 F.2d 708 (9th Cir.

1983) ..........     4

STATUTES:
28 U.S.C. § 1927 ............................................................ 7, 8
42 U.S.C, § 1988 .......... ..................................... ............ 2
42 U.S.C. § 2000(e)-5 (k) ..................................... ....... 2

CODE OF PROFESSIONAL RESPONSIBILITY:
Ethical Consideration 7-1 ......      7

11



In T he

0it|imnr (ttmirt of tfrp Ittnrt̂ xt &tat?£
October Term, 1986

No. 86-1408

Pearlie Mai Haynie, and her counsel,
Avon N. Williams, J r., E squire,

v Petitioners,

Ross-Gear Division of TRW, Inc. and 
U nited Automobile, Aerospace & Agricultural 

Implement Workers of America, Local 342,
Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Sixth Circuit

RESPONDENT’S BR IEF IN OPPOSITION

The respondent, United Automobile, Aerospace and 
Agricultural Implement Workers of America, Local 342, 
respectfully requests that this Court deny the Petition 
for Writ of Certiorari seeking to review the Sixth Cir­
cuit’s opinion in this case. That opinion is reported at 
799 F.2d 237.

REASONS WHY THE WRIT SHOULD BE DENIED

I. The Decision Below Is In Conformity With This Court’s 
Decision In Roadway Express v. Piper, 447 U.S. 752 
(1980).

Petitioner contends that the decision of the Sixth Cir­
cuit in this case assessing attorney’s fees under 28 U.S.C. 
§ 1927 is contrary to this Court’s decision in Roadway 
Express v. Piper, 447 U.S. 752 (1980) for the reason



2

that Roadway required a showing of bad faith. Respond­
ent contends that this reading of Roadway is erroneous.

The Roadway decision involved the issue of whether 
or not a court could assess attorney’s fees against 
counsel under 28 U.S.C. § 1927 (as it was worded in 
1980) or under the inherent powers of the Court. The 
Court found that § 1927 only allowed the assessment of 
excess costs against an attorney who acted unreasonably 
and vexatiously and that attorney’s fees were not au­
thorized as “ costs” under § 1927 as it then existed. Fur­
ther, the Court found that neither the attorney’s fees 
provision available to prevailing parties under 42 U.S.C. 
§ 1988 nor 42 U.S.C. § 2000(e)-5 (k) changed this result.

After making the finding that only excess costs were 
allowable under § 1927 rather than attorney’s fees, this 
Court then considered whether a court could assess at­
torney’s fees as a sanction against recalcitrant counsel 
under the Court’s inherent powers. The Court found 
that it could award attorney’s fees under its inherent 
powers where there was a showing that counsel’s conduct 
“ constituted or was tantamount to bad faith.” Roadivay 
Express, Inc., supra, 447 U.S. at 767. Since the Court 
below in Roadway had not made a specific finding that 
counsel’s conduct constituted bad faith, this Court re­
manded the case to the District Court for a decision on 
that issue. However, this Court affirmed the award of 
costs under the then existing 28 U.S.C. § 1927, admit­
tedly, in the absence of a specific finding of bad faith.

Following petitioner’s argument to its logical conclu­
sion would result in a finding that bad faith is required 
to assess attorney’s fees against counsel under § 1927 
though the words “bad faith” do not appear in the stat­
ute. Section 1927 allows the court to assess attorney’s 
fees against a counsel who “multiplies the proceedings 
in any case unreasonably and vexaciously . .  .”



3

Contrary to petitioner’s assertions, we have been un­
able to locate anywhere in the Sixth Circuit’s Opinion 
where the Sixth Circuit indicated that petitioner had 
“negligently” pursued claims that he should know are 
frivolous. A reading of the Opinion indicates that the 
Sixth Circuit merely found that where an attorney pur­
sues claims that he should know are frivolous, his conduct 
multiplies the proceedings unreasonably and vexaciously.

Petitioner painfully attempts to distinguish Jones v. 
Continental Corp., 789 F.2d 1225 (6th Cir. 1986) (re­
lied upon by the Court below as authority for assessing 
attorney’s fees under 28 U.S.C. § 1927). In doing so, 
petitioner admits that the September, 1980 Amendments 
to § 1927 were for the sole purpose of authorizing the 
assessment of attorney’s fees. This is precisely what the 
Jones case meant when it held:

The effect of the amendment was to nullify that part 
of Roadway Express which held that former § 1927 
permitted assessment against losing attorneys only of 
‘costs’, not of attorney’s fees, thus adding a statutory 
power to the ‘inherent power’ recognized in Roadway 
Express. [Citations omitted].

789 F.2d at 1229. Since Roadway refused to grant at­
torney’s fees as costs under the then existing § 1927, 
approximately three months after the issuance of the 
Roadway decision Congress amended § 1927 to allow for 
the assessment of attorney’s fees.1 Respondent contends

1 The legislative history makes clear that, the September 12, 
1980 amendment was intended to “expand [] the category of ex­
penses the judge might require an attorney to satisfy personally to 
include ‘. . . attorneys’ fees.’ ” Joint Explanatory Statement of 
the Committee of Conference, 96th Cong., 2d Sess. of reprinted in 
1980 U.S. Code Cong. & Ad. News 2781, 2782; see also, Lewis v. 
Brown & Root, Inc., 711 F.2d 1287, 1289, 1292 (5th Cir. 1983) 
(upholding award of attorneys’ fees under § 1927 against plaintiff 
and his attorney jointly and severally), cert, denied, ——  U.S.
----- , 104 S.Ct. 975, 79 L.Ed.2d 213 (1984), modified 722 F.2d 209
(per curiam) (remanding for trial court to determine whether



4

that the Sixth Circuit’s decision in Jones was logical and 
correct in light of the Roadway decision’s affirmance of 
the attorney’s fee award under 28 U.S.C. § 1927.

II. The Decision Below Adopts The Prevailing Rule On 
Imposing Sanctions Against Attorneys Under 28 U.S.C. 
§ 1927.

Petitioner contends that the decision below conflicts 
with Courts of Appeals of other circuits which allegedly 
require a showing of bad faith before an attorney can 
be sanctioned under 28 U.S.C. § 1927. However, the 
cases cited in petitioner’s argument only evidence one 
circuit which definitely requires a bad faith showing for 
assessment of attorney’s fees under § 1927 and one other 
circuit which equates frivolous filings with bad faith 
conduct.

In United States v. Blodgett, 709 F.2d 708 (9th Cir. 
1983), the issue before the Ninth Circuit was under what 
circumstances could the court impose monetary sanctions 
on an attorney for filing a frivolous appeal. The Court 
found that the imposition of sanctions under 28 U.S.C. 
§ 1927 required a finding that counsel acted recklessly 
or in bad faith. This position of the Ninth Circuit was 
reconfirmed in Tooms v. Leone, 777 F.2d 465, 471 (9th 
Cir. 1985).

The Seventh Circuit has also adopted a bad faith 
standard for assessing attorney’s fees against counsel 
under § 1927. In McConnell v. ShuraL, 774 F.2d 746 
(7th Cir. 1985), the Court held that in order to assess 
attorney’s fees for a frivolous appeal under Rule 38 or 
§ 1927, the Court must first determine whether the ap­
peal was frivolous and then whether the appellant’s 
counsel’s persistence in pursuing the litigation is itself

attorneys’ fees for entire proceeding or just a portion of it should
be awarded) ; cert, denied, ----- - U.S. — , 104 S.Ct. 2690 81
L.Ed.2d 884 (1984).



5

evidence of bad faith. The McConnell decision relied on 
Trecker v. Scag, 747 F.2d 1176 (7th Cir. 1984), cert.
den., ------ U.S. ----- , 105 Sup.Ct. 2140, 85 L.E.D. 2d
498 (1985). However, it is interesting to note that the 
Court in Trecker, supra, found that persistence in the 
litigation is itself evidence of bad faith. Therefore, re­
spondent contends that although the standard in the 
Seventh Circuit may require a finding of bad faith for 
assessment of attorney’s fees against counsel under § 1927, 
the standard for determining bad faith is extremely low 
since mere persistence in the frivolous litigation, itself, 
may be evidence of bad faith.

Several of those cases cited by petitioner for the prop­
osition that bad faith is required to assess attorney’s 
fees under § 1927 simply do not stand for this proposi­
tion. In Limerick v. Greenwald, 749 F.2d 97, 101-102 
(1st Cir. 1984), the Court held that the manner in which 
counsel conducted the appeal so unreasonably multiplied 
the proceedings as to justify the imposition of attorney’s 
fees against them personally. There was no mention in 
the decision of the requirement of a finding of bad faith.

In Blair v. Shenandoah Women’s Center, Inc., 757 F.2d 
1435, 1436 (4th Cir. 1985), although the Court found 
that plaintiff’s counsel had engaged in subjective bad 
faith conduct, the decision does not require a finding of 
subjective bad faith conduct under 28 U.S.C. § 1927. 
Moreover, the Court refused to disturb the District 
Court’s finding that it “has inherent power to assess 
attorney’s fees against an attorney, which power is not 
limited to cases filed in bad faith, but includes actions 
leading to the filing of suit and includes conduct during 
the course of litigation.” See, 757 F.2d at 1436.

Petitioner also cites Tedeschi v. Barney, 757 F.2d 465 
(2d Cir. 1985). The Second Circuit in Tedeschi affirmed 
the decision of the District Court finding that counsel 
had engaged in bad faith conduct. Although defendants



6

moved for attorney fees tinder Rule 11, Fed.R.Civ.P., 
§ 1927 and the inherent equitable powers of the Court, 
the District Court had previously found bad faith. The 
Second Circuit merely recited the inherent powers rule 
addressed in Roadway and did not address the issue of 
bad faith under 28 U.S.C. § 1927.

In Morris v. Adams Millis Corp., 758 F.2d 1352 (10th 
Cir. 1985), although the Court found that plaintiff’s 
counsel had engaged in bad faith conduct, the Court noted 
at footnote 7 of the Opinion (see, 758 F.2d at 1357, note 
7) that it is well-established that courts have the inherent 
power to impose sanctions on both litigants and attorneys 
to, inter alia, deter frivolous filings. The Tenth Circuit 
read Roadway, supra, to hold that “ apart from § 1927, 
the Federal Courts have the inherent power to award 
attorney fees against counsel personally when the Court 
has found that the attorney acted in bad faith.” [Empha­
sis added]. 758 F.2d at 1358, note 7.

In In Re: Oximetrix, Inc., 748 F.2d 637 (Fed.Cir. 
1984), the Federal Circuit, in assessing attorney’s fees 
against plaintiff’s counsel under 28 U.S.C. § 1927, found 
that plaintiff never had a basis for removal and that 
competent counsel would have not possibly failed to recog­
nize this fact. The Court further found that plaintiff’s 
petition for mandamus was frivolous and interposed for 
the purpose of delay. As a result of this finding, the 
Court assessed attorney’s fees jointly and severally against 
plaintiff and counsel. The words, “bad faith,” were not 
mentioned in the decision.

Finally, petitioner cites Sturgeon v. Airborne Freight 
Corp., 778 F.2d 1154 (5th Cir. 1985) for the proposition 
that bad faith is required to impose 1 1927 sanctions. 
However, the Court in Sturgeon reasoned that sanctions 
on appeal are assessed “when the claim advanced is un­
reasonable, or is not brought with a reasonable good faith 
belief that it is justified. An appeal is frivolous when it



7

involves legal points that are not arguable on their 
merits.” 778 F.2d 1161-1171. The Court adopted an “un­
reasonable and unjustified” standard rather than a “bad 
faith” standard.

In summation, we read only one and possibly two Cir­
cuit Courts of Appeals to require a bad faith finding for 
the assessment of attorney fees under § 1927. We have 
been unable to locate any other circuits requiring a find­
ing of bad faith over and above the plain statutory 
language which merely requires a showing of unreason­
ableness and vexaciousness.

III. The Decision Below Does Not Conflict With Counsel’s 
Ability To Comply With The Code Of Professional 
Responsibility, Nor Is It A Matter Of National 
Importance.

Petitioner submits that the Code of Professional Re­
sponsibility required him to “represent his client zealously 
within the bounds of law.” Ethical Consideration 7-1. 
Although Ethical Consideration 7-1 requires an attorney 
to represent his client zealously, the section qualifies this 
zealous representation by requiring that the representa­
tion be “within the bounds of the law.” Therefore, re­
spondent contends that once petitioner’s conduct contra­
vened 28 U.S.C. § 1927 (a federal statute), it ceased to 
be zealous representation and became outside of the 
bounds of law. Since the Court below found that plain­
tiff’s case was frivolous and that plaintiff’s counsel knew 
or should have known this fact, his conduct in pursuing 
this case was outside of the bounds of law.

Finally, respondent contends that 28 U.S.C. § 1927 is 
a provision which was enacted to allow courts to govern 
the conduct of attorneys practicing before them. It is 
difficult to imagine how this Court could set a standard 
governing conduct under that statute which would be 
clearer than the plain meaning of the statute. Respondent 
contends that Courts in the Sixth Circuit should be able



8

to control members of their bar who should be aware of 
the standards of conduct within their Circuit. Therefore, 
a uniform or national decision regarding 28 U.S.C. § 1927, 
we think, is unnecessary given the need for courts to 
control their own attorneys, the unambiguous language 
of the statute, and the variety of fact patterns which can 
only be determined on a case by case basis.

CONCLUSION

For these reasons, the Petition for Writ of Certorari 
should be denied.

Respectfully submitted,

Mark A l l e n  
L y n n  A gee 

Counsel of Record 
Gerber , Gerber  & A gee 
7th Floor, 65 Union Avenue 
Memphis, Tennessee 38103 
(901) 523-0019
JORDEN ROSSEN 
N a n cy  S c h iffer  
UAW L egal Depa rtm en t  
8000 East Jefferson Avenue 
Detroit, Michigan 48214 
Attorneys for Respondents



la

APPENDIX

STA TU TES INVOLVED

1. 28 U.S.C., Section 1927 (1948).

Counsel’s Liability for Excessive Costs

Any attorney or other person admitted to conduct cases 
in any court of the United States or any Territory thereof 
who so multiplies the proceedings in any case as to in­
crease costs unreasonably and vexatiously may be re­
quired by the Court to satisfy personally such excess costs.

2. 28 U.S.C., Section 1927 (1980).

Counsel’s Liability for Excessive Costs

Any attorney or other persons admitted to conduct 
cases in any court of the United States or any Territory 
thereof who so multiplies the proceedings in any case un­
reasonably and vexatiously may be required by the court 
to satisfy personally the excess costs, expenses, and attor­
neys’ fees reasonably incurred because of such conduct.