Braley v. Campbell
| Decision Date | 09 November 1987 |
| Docket Number | No. 84-2006,84-2006 |
| Citation | 832 F.2d 1504 |
| Parties | , 9 Fed.R.Serv.3d 772 Jack A. BRALEY, D.O., Plaintiff-Appellant, v. Garland CAMPBELL, M.D.; Bruce G. Smith, M.D.; Stephen Smith, M.D.; Newton C. Smith, M.D.; David K. Ross, M.D.; George C. Meek, M.D.; Edgar D. Hinshaw, M.D.; James E. Hill, M.D.; Robert Kelling, Administrator, Arkansas City Memorial Hospital; J.W. Anderson; Jean Fearnow; Ronnie D. Jenkins; Virgil E. Watson; E.W. Shelton; Arkansas City Memorial Hospital; and Thelma B. Meek, Administratrix of the Estate of George C. Meek, deceased, Defendants- Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Robert H. Alexander, Jr., Linn & Helms, Oklahoma City, Okl., for plaintiff-appellant.
William Tinker (Quentin E. Kurtz and John E. Angelo with him on the brief), McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, Kan., for defendants-appellees Garland Campbell, M.D., Bruce G. Smith, M.D., Stephen Smith, M.D., David K. Ross, M.D., and Edgar D. Hinshaw, M.D.
Before BARRETT, McKAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, and BALDOCK, Circuit Judges. *
On Rehearing En Banc
This en banc rehearing arises from an unpublished order and judgment issued by a panel of this court affirming the district court's grant of summary judgment in favor of all defendants in an action brought by plaintiff-appellant Jack A. Braley, D.O. In its order the panel sua sponte labeled the appeal as "patently frivolous, multiplicious and vexatious," and invoked the provisions of 28 U.S.C. Sec. 1927 and Fed.R.App.P. 38 to award costs and reasonable attorney's fees to appellees, to be paid personally by appellant's attorney, Robert H. Alexander, Jr. 1 The cause was then remanded for determination of the amount to be paid.
We granted rehearing en banc only as to the issue of sanctions. Alexander challenges these sanctions on the grounds that (1) the record does not support the findings necessary to impose sanctions on him under 28 U.S.C. Sec. 1927; and (2) he was denied due process with respect to notice, an opportunity to be heard, and sufficient express findings to justify imposition of sanctions. He has also attempted to reargue the merits of the case to support his decision to undertake the appeal.
Since our focus is upon the imposition of sanctions against an attorney personally, we first briefly review the attorney's conduct of this litigation. Alexander undertook this case in August 1984, after the initial notice of appeal of the district court's grant of summary judgment was filed, but before the appellate briefing process had begun. The record on appeal is voluminous, including sixty-three depositions and two volumes of exhibits concerning defendants' motion for summary judgment.
The underlying suit was for damages and injunctive relief against a municipal hospital, certain staff doctors, the hospital administrator, and the city commissioners for the suspension of the plaintiff doctor's hospital staff privileges. The complaint asserted civil rights claims under 42 U.S.C. Sec. 1983, conspiracy based upon plaintiff's religious beliefs in violation of the First and Fourteenth Amendments to the United States Constitution, denial of due process, and conspiracy in restraint of trade under the Sherman Act, 15 U.S.C. Sec. 1 et seq. It also asserted pendent state claims for intentional interference with business contacts and conspiracy to defame.
Alexander's actions before both the panel and now on rehearing en banc have perplexed and confounded the defendants and this court. Before the panel, Alexander submitted a brief containing twenty-seven pages of statement of facts, but only six pages of legal argument. This argument was simply to the effect that the court's order granting summary judgment was erroneous because there existed fact issues of credibility on intent and motive.
Complaining that they could not glean from this brief what issues plaintiff wished to address on appeal, defendants asserted that they were "seriously hampered in formulating a response to plaintiff's nebulous contentions" and requested the court to dismiss the appeal for plaintiff's disregard of Fed.R.App.P. 28. Brief of Appellees Garland Campbell, M.D., Bruce G. Smith, M.D., Stephen Smith, M.D., David K. Ross, M.D., and Edgar D. Hinshaw, M.D., at 10. In preparing their answer brief defendants relied upon plaintiff's trial counsel's memorandum in opposition to summary judgment, which dealt with the civil rights claims (substantive and procedural due process) and the antitrust contentions. Id. Alexander's six-page brief in reply did little to clarify matters as it merely reargued plaintiff's entitlement on a summary judgment motion against him to all favorable factual inferences that could be drawn, made other short arguments, and stated that plaintiff did not intend to press his antitrust claims on appeal.
The panel had the same difficulties as defendants in sorting out plaintiff's contentions on appeal. 2 It surmised that plaintiff was making essentially two claims: that his hospital staff privileges were suspended without procedural due process, and that the individual defendants conspired to suspend his staff privileges because of animus due to plaintiff's religious beliefs. The panel concluded that the district court properly granted defendants' motions for summary judgment, finding no disputed material facts and rejecting plaintiff's due process and conspiracy claims on the merits.
We have carefully reviewed the record, the briefs in the original appeal and upon rehearing, and the entire panel opinion to reevaluate the panel's determination that the appeal was frivolously and vexatiously taken and that sanctions were warranted. We are satisfied that, on the record before it, the panel correctly found that plaintiff could make no reasonable argument that his due process rights were violated and that there was no evidence of an illegal conspiracy based upon plaintiff's religious beliefs warranting submission of the issue to a jury. The errors Alexander asserts the panel made in factual references, if true, would not change the result. 3
We read the panel's justifications for the sanctions against Alexander as finding that the appeal was (1) hopeless, hence frivolous under any reasonable analysis; (2) multiplicious because it unnecessarily extended the litigation; and (3) vexatious at least in part because Alexander's briefing obfuscated the legal issues and complicated the defendants' and the court's task of sorting them out.
Alexander has made our task on appeal en banc difficult by raising arguments which strain our credulity. For example, in his supplemental brief on rehearing he complains that arguments which the panel opinion had labeled meritless were not urged by him but by plaintiff's former counsel. To the extent this is true, Alexander's handling of the appeal and the briefs were responsible for the confusion. It is no defense that this court denied defendants' motion to dismiss for the plaintiff-appellant's brief's failure to comply with Fed.R.App.P. 28. Our practice, now explicit in Tenth Cir.R. 27.1.1, has long been to deny all motions to dismiss not based upon jurisdictional defects.
In addition, Alexander has persisted in the incredible argument that the petition for rehearing by the panel has neither been granted nor denied but remains pending. He asserts that this court's order of January 3, 1986, which explicitly addressed both the petition for rehearing and the suggestion for rehearing en banc, and granted rehearing en banc on the question of sanctions only, did not "otherwise address" the petition for rehearing. Reply Brief of Appellant on Rehearing En Banc at 19. Although denial of a petition for rehearing (an action taken within a three-judge panel of the court) does not necessarily address an accompanying suggestion for rehearing en banc as mandated by the Supreme Court in Western Pacific Railway Corp. v. Western Pacific Railway Co., 345 U.S. 247, 262, 73 S.Ct. 656, 663-64, 97 L.Ed. 986 (1953), under Fed.R.App.P. 35 our grant of rehearing en banc necessarily supersedes and disposes of the petition for rehearing by the panel.
Alexander also asserts that defendants-appellees' failure to file a brief for en banc consideration without offering "some neutral explanation or confessing error," is due to their cynicism, insincerity, and allegiance to "no calling higher than mere greed," which constitutes "bad faith." Reply Brief of Appellant on Rehearing En Banc at 7. In fact, the notice of intention not to file a brief expressly specifies that some defendants did not submit briefs because of an agreement, filed with the court, to waive any award of attorney's fees to them. Other defendants-appellees complied with the briefing schedule.
Finally, Alexander has violated Fed.R.App.P. 28(j) by making additional arguments in letters which ostensibly provided the court with supplemental authorities. Such arguments are improper and further burden the court and counsel.
To deter frivolous and abusive litigation and promote justice and judicial efficiency, the federal courts are empowered to impose monetary sanctions, by statutes and the rules of civil and appellate procedure as well as their inherent right to manage their own proceedings. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 764-67, 100 S.Ct. 2455, 2463-64, 65 L.Ed.2d 488 (1980). We focus here on the imposition of monetary sanctions on attorneys by the court of appeals, the "just damages and ... costs" authorized by Fed.R.App.P. 38, and the "excess costs, expenses and attorney's fees" specified by 28 U.S.C. Sec. 1927. 4 These provisions, as contrasted with the courts' more general disciplinary powers, 5 focus upon conduct in specific litigation that imposes unreasonable and unwarranted burdens on the court and opposing parties. See Toepfer v. Department of Transportation, 792 F.2d 1102, 1102-03 (Fed.Cir.1986); Eash...
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