Coghlan v. Starkey

Decision Date08 August 1988
Docket NumberNo. 2,No. 87-3668,2,87-3668
Citation852 F.2d 806
PartiesAnn COGHLAN, Plaintiff-Appellant, v. Donald STARKEY, Emmett Perrilloux, Anthony S. Arnone, Stanley Howes, Joseph W. Potasnick and Waterworks Districtof Tangipahoa Parish, Louisiana, Defendants-Appellees. Summary Calendar.
CourtU.S. Court of Appeals — Fifth Circuit

Ralph Brewer, Baton Rouge, La., for plaintiff-appellant.

Robert W. Tillery, Ponchatoula, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE, RUBIN, and SMITH, Circuit Judges.

SUPPLEMENTAL OPINION

PER CURIAM:

Appellant Ann Coghlan brought suit under 42 U.S.C. Sec. 1983 against the local Waterworks District and its Board of Commissioners, asserting violation of her constitutional rights in that the defendants refused to perpetuate the free water service she had enjoyed for several years. The district court, on the basis of a magistrate's hearing and recommendation, denied all relief. We previously affirmed that judgment. 845 F.2d 566 (5th Cir.1988).

At that time we raised, sua sponte, the possible propriety of sanctions for frivolous appeal pursuant to Fed.R.App.P. 38 and gave Coghlan's attorney an opportunity to show cause why sanctions should not be imposed. Counsel's memorandum, setting forth his position on the assessment of sanctions, has been considered, but it argues little against the propriety of sanctions for appeal in a case in which, as here, there was no reasonable, good-faith argument advanced for the extension, modification, or reversal of precedent clearly elaborated by the opinion below. Instead, Coghlan's attorney cites us to numerous out-of-circuit cases where more egregious appellate conduct was sanctioned, reminding us that this appeal was taken in subjective good-faith and in the earnest hope that we would draw conclusions, from the nearly undisputed facts, different from those reached by the magistrate in accordance with clear precedent. Such a response not only fails to explain why this appeal should not be considered frivolous, but underscores that counsel must have pursued this litigation without any reasonable basis for belief that Coghlan's constitutional claims would prevail on the merits.

We accept counsel's admonition that it was he and not his indigent client who decided to prosecute this case further. After review of the memorandum and affidavit filed by appellee Waterworks District, setting forth the time and expense incurred by it in responding to this frivolous appeal, we find $1,350.00, the amount submitted by appellee's counsel, to be a reasonable attorneys' charge for its appellate defense, based upon the reasonable hourly fee of $75. Accordingly, we ORDER appellant's counsel personally to pay such sum over to appellee, in addition to the costs normally taxable against the nonprevailing party. Coghlan shall remain ultimately liable only for said single costs, but she and her attorney may apportion this routine award between themselves as they see fit.

I. OUR PURPOSE.

In this case, unlike some of the others cited, the appellee did not move for sanctions on appeal, or, for that matter, in the district court; nonetheless, there is no question that the courts of appeals have the ability to impose sanctions sua sponte. 1 Appellant seems to argue that an imposition sua sponte of sanctions upon a finding that an appeal was frivolous "ought to be severely limited to extraordinary cases" in which delay, harassment, obstinancy, or other improper purpose aggravates the unreasonableness of taking the appeal. While some cases have relied upon such evidence of bad faith, ill purpose is in no way a necessary element for imposition of sanctions under rule 38. And while rule 38 sanctions are often imposed, especially in tax cases, after the litigant had been sanctioned below for frivolous conduct, the district court does not need to have imposed sanctions, or explicitly denominated the case as frivolous, for the court of appeals to find that the appeal was frivolous and without merit. "That the district court did not find appellant's charges so redundant and frivolous as to warrant sanctions does not preclude a contrary decision on appeal." Freeze v. Griffith, 849 F.2d 172, 176, (5th Cir. 1988) (sanctions against pro se prisoner pursuant to 28 U.S.C. Sec. 1915(e)) (citing Lay v. Anderson, 837 F.2d 231, 232 (5th Cir.1988)). Similarly, an appellant does not have to conduct the appeal in a manner sanctioned in other cases in order for us to view the appeal as necessarily lacking plausible argument following a clean disposition of the relevant issues by the district court.

Counsel continually argues, in explanation of his pursuit of Coghlan's baseless claim, that he believed in good faith that recitation of the facts ought easily to have led us to a conclusion diametrically opposed to that reached by the magistrate. Thus, Coghlan's attorney asserts that "[i]n other words, the magistrate should have found under the facts that Coghlan possessed a constitutionally protected property interest to receive water service," and that this appellate panel "should" more readily have disregarded the controlling case law to substantiate such a "compelling" claim. In part, Coghlan's counsel responds to our show cause notice as follows:

Argument could be made without extensive citation of authority. Counsel's brief therefore contained the argument that the magistrate's conclusion was incorrect, based upon the very facts found by the magistrate and based upon the very law the magistrate cited.

Somehow, the three judge panel of this court to which this case was allotted rejected what counsel in good faith believed to be a strong contention that Coghlan was a consumer/customer of the Waterworks District and possessed a constitutionally protected property interest. The panel affirmed the magistrate in [a] seven page opinion....

Somehow, also the three judge panel of this court found Coghlan's claim was unfounded. This court, therefore, in effect determined Coghlan abused her right of appeal.

However, it is not Coghlan's right to appeal the judgment against her that is at issue; rather, the point is that her entirely "frivolous" appeal is an unjustified consumption of appellate resources, which, "in addition, has put the appellee to heavy expense required to analyze the record, brief the issues and argue the case." Bank of Canton, Ltd. v. Republic Nat'l Bank, 636 F.2d 30, 31 (2d Cir.1980). In contemplating sanctions for an appellate brief that fails to argue any case law, makes hardly any attempt to distinguish precedents relied upon below, argues the merits in the most conclusory fashion, and offers no independent legal analysis different from that decisively rejected by the district court, we follow the identical course we established in other cases. 2 In this regard, another circuit recently commented:

It is human nature to crave vindication of a passionately held position even if the position lacks an objectively reasonable basis in the law. Although we have no reason to believe that the company or its counsel was acting in bad faith, ... the company's briefs and oral argument failed to identify any arguable error in the district court's decision.... We have gone on at such length not because the question of the validity of the arbitrator's award is difficult but to make clear that the company's attack on the award was frivolous, thus entitling the union to attorney's fees.

Dreis & Krump Mfg. Co. v. Int'l Ass'n of Machinists, 802 F.2d 247, 255-56 (7th Cir.1986). 3

The purpose of this lengthy review of current sanctions cases is to elaborate clearly for counsel herein, and for all practioners, that there can be little tolerance for unmerited appeals without articulable support in the law. Appeal as of right does not translate into propriety of appeal when counsel can make no reasonable argument for extension, modification, or reversal of precedent clearly elaborated by the district court opinion. Another circuit court of appeals recently took the time to readdress a rule 38 award it had imposed:

When the appellant files an appeal, he asks for this court's attention. [T]he notion that an appellant has an untrammelled right of review cannot shift the burden of going forward to the appellee.... Appellee should not be forced to endure the expense and anxiety of waiting unnecessarily to have its dispute resolved. With so many worthy claims waiting to be resolved, we cannot tolerate unfounded and undeveloped claims [to clog our docket and consume appellate time and resources].

Reliance Ins. Co. v. Sweeney Corp., 792 F.2d 1137, 1139 (D.C.Cir.1986) (per curiam) (in opinion affirming summary judgment, panel sua sponte ordered appellant and its attorney to show cause why sanctions should not be imposed; appellant filed no response and, based upon affidavit of appellee, $5220.00 was awarded). 4

II. THE PURPOSE OF RULE 38.

The magistrate's decision dispelled any claim that there was a colorable constitutional deprivation. Disregarding the magistrate's recommendation that each party bear its own costs, the district court ordered Coghlan to pay the Waterworks District's taxable expenses. Because of the totally unfounded nature of the constitutional claim here advanced, the district court was entirely justified in imposing costs upon the plaintiff. That action alone should have suggested to Coghlan that her claim was more than merely meritless--the law was and is well settled that the claim was unsupportable and unreasonable.

However, assertedly having reviewed the judgment against Coghlan and examining the case law, her attorney on appeal agreed to bring the case to this court. With what independent judgment he determined that success on the facts could be obtained totally evades our imagination; no attorney who made a diligent inquiry into the state of the law when this appeal was...

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