DeBauche v. Trani

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SUE HARRIS DEBAUCHE,
Plaintiff-Appellant,

v.

EUGENE TRANI; LAWRENCE DOUGLAS
WILDER; CLEAR CHANNEL RADIO,
INCORPORATED, t/a WRVA, a Nevada
Corporation; CENTRAL VIRGINIA
EDUCATIONAL TELECOMMUNICATIONS
No. 98-1658
CORPORATION, t/a WNVT,
Defendants-Appellees,

and

VIRGINIA COMMONWEALTH
UNIVERSITY,
Defendant.

ACLU FOUNDATION OF VIRGINIA,
Amicus Curiae.

SUE HARRIS DEBAUCHE,
Plaintiff-Appellant,

v.
No. 98-2517
LAWRENCE DOUGLAS WILDER; CLEAR
CHANNEL RADIO, INCORPORATED, t/a
WRVA, a Nevada Corporation;
CENTRAL VIRGINIA EDUCATIONAL
TELECOMMUNICATIONS CORPORATION,
t/a WNVT,
Defendants-Appellees,

and
VIRGINIA COMMONWEALTH
UNIVERSITY; EUGENE TRANI,
Defendants.

ACLU FOUNDATION OF VIRGINIA,
Amicus Curiae.

Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-97-770-3)

Argued: March 3, 1999

Decided: September 15, 1999

Before WIDENER, NIEMEYER, and KING, Circuit Judges.

_________________________________________________________________

Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge Niemeyer wrote the opinion, in which Judge Widener
joined. Judge King wrote a separate opinion, concurring in part and
dissenting in part.

_________________________________________________________________

COUNSEL

ARGUED: James Jeffrey Knicely, KNICELY & COTORCEANU,
P.C., Williamsburg, Virginia, for Appellant. Alison Paige Landry,
Assistant Attorney General, OFFICE OF THE ATTORNEY GEN-

2
ERAL, Richmond, Virginia; John Samuel Martin, HUNTON & WIL-
LIAMS, Richmond, Virginia; Andrew Gray Mauck, MAYS &
VALENTINE, L.L.P., Richmond, Virginia; Lawrence Douglas Wil-
der, Jr., WILDER & GREGORY, Richmond, Virginia, for Appellees.
ON BRIEF: Thomas Stephen Neuberger, THOMAS S. NEUBER-
GER, P.A., Wilmington, Delaware; John W. Whitehead, Stephen H.
Aden, THE RUTHERFORD INSTITUTE, Charlottesville, Virginia,
for Appellant. Mark L. Earley, Attorney General of Virginia, Ashley
L. Taylor, Jr., Deputy Attorney General, Ronald C. Forehand, Senior
Assistant Attorney General, William E. Thro, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL, Richmond,
Virginia, for Appellant Trani. R. Hewitt Pate, HUNTON & WIL-
LIAMS, Richmond, Virginia; Robert L. Brooke, MAYS & VALEN-
TINE, L.L.P., Richmond, Virginia, for Appellees WNVT and
WRVA. Roger L. Gregory, Laura M. Hillenbrand, WILDER &
GREGORY, Richmond, Virginia, for Appellee Wilder. Randal M.
Shaheen, Christopher F. Winters, ARNOLD & PORTER, Washing-
ton, D.C., for Amicus Curiae.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

During the 1997 gubernatorial election campaign in Virginia, L.
Douglas Wilder, a radio talk show host with radio station WRVA and
former governor of Virginia, organized a political debate between the
Republican and Democratic candidates for governor at Virginia Com-
monwealth University ("VCU"). The debate, dubbed "Debate Vir-
ginia," was broadcast on radio station WRVA and on television
station WNVT, as well as on other stations. Because she was not
invited to participate, Sue Harris DeBauche, the Virginia Reform
Party candidate for governor, filed this action under 42 U.S.C. § 1983,
alleging that the defendants violated her constitutional rights to free
speech and equal protection.

The district court dismissed DeBauche's action under Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6) on various grounds as
applicable to the several defendants, including sovereign immunity,

3
qualified immunity, and the absence of "state action." The court also
assessed a portion of defendants' attorneys fees and costs against both
DeBauche and her attorneys based on the action's lack of merit.

For the reasons that follow, we affirm the district court's dismissal
order but vacate the order shifting fees and costs for reconsideration
in light of this opinion.

I

On October 15, 1997, a few weeks before the 1997 gubernatorial
election in Virginia, DeBauche filed the complaint in this case under
42 U.S.C. § 1983, alleging that she had been excluded from Debate
Virginia in violation of her rights under the First, Ninth, and Four-
teenth Amendments to the United States Constitution. She named as
defendants: VCU, where the debate had occurred; its president,
Eugene Trani, both individually and in his official capacity; and
Douglas Wilder, who initiated the debate by inviting the Republican
and Democratic candidates to a radio debate. DeBauche requested a
declaratory judgment that her rights had been violated, injunctive
relief, and compensatory and punitive damages in an unspecified
amount. After VCU and Trani filed a motion to dismiss, DeBauche
filed an amended complaint to modify some of the allegations and to
add as defendants the owners of the radio station and the television
station which sponsored the debate: Clear Channel Radio, Inc., the
owner of radio station WRVA ("WRVA"), and Central Virginia Edu-
cational Telecommunications, Inc., the owner of television station
WNVT ("WNVT").

In her amended complaint, DeBauche alleged that in April 1997,
Wilder invited Republican gubernatorial nominee, James S. Gilmore,
III, and Democratic nominee, Donald S. Beyer, Jr., to a radio debate
in which each could address the issues of the campaign and his
record. Several months later, in July 1997, Wilder confirmed in writ-
ing "that negotiations were concluded relative to Debate Virginia" and
that it would be "jointly sponsored" by WRVA, WNVT, and VCU.
The amended complaint alleges that VCU and Trani offered, and Wil-
der accepted, VCU as a place to hold the debate and that VCU and
Trani contributed "VCU personnel, staff and other resources to plan,
promote, manage and execute the debate." As DeBauche character-

4
ized the roles of the parties, Wilder "served as convener and modera-
tor of Debate Virginia," and all of the other defendants "co-sponsored,
planned, promoted, managed, executed, and paid" for it. The debate
took place on October 6, 1997.

After arrangements for the debate had been completed and three
weeks before the debate, DeBauche became "duly qualified" with the
State Board of Elections as the Reform Party candidate for governor,
having been selected at a meeting of the Virginia Reform Party State
Central Committee on September 14, 1997. Between September 15
and October 6, DeBauche alleged that she and other Reform Party
members placed telephone calls to Wilder at various telephone num-
bers and to Debate Virginia at its toll-free number for the purpose of
having DeBauche included in the debate. DeBauche also sent e-mails
to Debate Virginia's website for the same purpose. DeBauche alleged
that she received no responses to her inquiries and that all efforts to
participate were unsuccessful. Shortly after the debate, DeBauche
"made a written demand to the defendants VCU and Trani that they
schedule a gubernatorial debate including all three candidates before
the November 4, 1997, election," but VCU and Trani rejected this
demand on October 24, 1997.

DeBauche alleged that Debate Virginia constituted a designated
public forum at which she was entitled under the First Amendment to
appear and to express her views and the views of the Reform Party.
To that end, she purported to bring the action not only on her own
behalf but also on behalf of "the individual members of [the Virginia
Reform Party] and on behalf of the Party." Alternatively, she alleged
that even if the debate was a nonpublic forum, she and the Reform
Party members were discriminated against "without a reasonable
basis." Specifically, she claimed that "[b]ut for the actions of the
defendants" in not including her in Debate Virginia, she would have
received "at least 15% of the statewide vote in the [1997] election."

In an attempt to satisfy the requirements of 42 U.S.C. § 1983, De-
Bauche alleged that VCU and Trani were "state actors" and that Wil-
der, WRVA, and WNVT "may fairly be said to be state actors
because they worked jointly on Debate Virginia with the defendants
VCU and Trani." She alleged that because Wilder, WRVA, and

5
WNVT "have jointly engaged with state officials in the challenged
actions, . . . they [were] acting under color of law."

DeBauche requested relief including: (1) a declaratory judgment
that the defendants' actions deprived DeBauche, the Party, and the
Party's members of constitutional rights, (2) an injunction barring the
defendants from excluding DeBauche and "any other future Party
candidate" from any future debate, (3) compensatory and punitive
damages, and (4) attorneys fees. In addition, DeBauche asked the
court to "review and consider" the results of the 1997 gubernatorial
election to determine whether other equitable relief was warranted,
including "declaring that [DeBauche] would have received 15% of the
statewide vote" and directing that the State Board of Elections be
joined "to certify [Virginia Reform Party] candidates . . . to be placed
on the ballot in the next Virginia gubernatorial election."

The district court granted the defendants' motions to dismiss the
amended complaint on April 13, 1998, on various grounds. At the
outset, the court rejected the defendants' contention that DeBauche's
claims were moot because "[i]t is more than conceivable that De-
Bauche as a Reform Party candidate for a political office will be
excluded from a [future] debate including only Democratic and
Republican candidates and involving a state university." The court
concluded, however, that DeBauche lacked standing to assert claims
on behalf of the Reform Party. With respect to the claims against the
state actors, VCU and Trani, the district court found that the claims
were barred by the Eleventh Amendment. With respect to the claims
against Trani in his individual capacity, the court found that De-
Bauche failed to allege sufficient state action and that Trani was enti-
tled to qualified immunity. And finally, with respect to the private
defendants, Wilder, WRVA, and WNVT, the court found that they
were not state actors and that they were not sufficiently intertwined
with state actors to make their conduct state action.

In a subsequent order, the district court also awarded defendants
Wilder, WRVA, and WNVT attorneys fees and costs under 42 U.S.C.
§ 1988(b), in the amount of $48,477, concluding that DeBauche's
claims against them were "without foundation" and "baseless and
unreasonable." The court also ordered that DeBauche's counsel be
jointly and severally liable under 28 U.S.C. § 1927, in the amount of

6
$37,859, for the awards made to WRVA and WNVT. The court
inferred bad faith on the part of DeBauche's attorneys because "it was
evident that DeBauche was tying the private broadcasting defendants
with a tenuous string to Virginia Commonwealth University in order
to show they were exhibiting state action." The court observed that
the liability for DeBauche's attorneys was particularly appropriate "in
light of DeBauche's [impecunious] financial situation and the Court's
question as to how her lawsuit has been funded."

This appeal followed.

II

The district court dismissed the claims against VCU and against
Trani in his official capacity as president of VCU on the basis that
they were barred by the Eleventh Amendment. DeBauche does not
challenge the district court's decision as to VCU, but she does con-
tend that Trani does not have Eleventh Amendment immunity from
her claims for injunctive and declaratory relief because "official-
capacity actions for prospective relief are not treated as actions
against the State." Kentucky v. Graham, 473 U.S. 159, 167 n.14
(1985) (citing Ex parte Young, 209 U.S. 123 (1908)). The Ex parte
Young exception, however, applies only when there is an ongoing vio-
lation of federal law that can be cured by prospective relief. It does
not apply when the alleged violation of federal law occurred entirely
in the past. See Green v. Mansour, 474 U.S. 64, 68 (1985) (observing
that "compensatory or deterrence interests are insufficient to over-
come the dictates of the Eleventh Amendment"); Republic of Para-
guay v. Allen, 134 F.3d 622, 627 (4th Cir. 1998) (noting that the Ex
parte Young exception applies only when "(1) the violation for which
relief is sought is an ongoing one, and (2) the relief sought is only
prospective" (citations omitted)).

In her amended complaint, DeBauche alleged that Trani conspired
to keep her out of Debate Virginia in 1997 and that the defendants,
including Trani, "will either individually or jointly sponsor, plan, pro-
mote, manage or hold statewide debates in the future from which can-
didates of the [Virginia Reform] Party will be excluded and to which
only Democratic and Republican candidates will be invited." While
we must, at this motion-to-dismiss stage of the case, accept as true the

7
allegations of DeBauche's complaint, see Conley v. Gibson, 355 U.S.
41, 47-48 (1957), her allegations that she or Reform Party candidates
will be excluded from future debates do not, as a matter of law, allege
an ongoing violation of federally-protected rights. Instead, they
amount to conjecture regarding discrete future events. Mere conjec-
ture is insufficient to transform a one-time event into a continuing
governmental practice or an ongoing violation. Accordingly, De-
Bauche's claim against Trani in his official capacity does not fall
within the Ex parte Young exception, and we have no reason not to
apply the traditional principles of Eleventh Amendment immunity to
dismiss the claims against Trani in his official capacity.

III

To the extent that DeBauche alleges that Trani, in his individual
capacity, violated her constitutional rights, Trani is entitled to quali-
fied immunity if his conduct involved performance of discretionary
duties and did not "violate clearly established statutory or constitu-
tional rights of which a reasonable person would have known."
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Buonocore
v. Harris, 65 F.3d 347, 353 (4th Cir. 1995).

The constitutional violation alleged in this case arose from De-
Bauche's contention that she was excluded from Debate Virginia
based upon the "content or viewpoint" expressed by her candidacy.
Assuming solely for purposes of this argument that VCU and Trani,
by providing the location for the debate, were in fact responsible for
the selection of the participants and that the exclusion of DeBauche
was viewpoint-based, Trani would nonetheless be entitled to qualified
immunity because he could not have known at the time that such con-
duct was constitutionally prohibited. The question raised under these
assumptions would be whether a candidate debate held by a state
entity was a "public forum" such that viewpoint discrimination would
be restricted by the Constitution.

This issue was decided for the first time in Arkansas Educational
Television Commission v. Forbes, 523 U.S. 666 (1998), after Debate
Virginia had taken place. In Forbes, which held that a decision to
exclude a minor party candidate from a debate sponsored by a public
television station was subject to First Amendment review in a non-

8
public forum category, the Court noted that it was carving out, for the
first time, a "narrow exception to the rule" that public broadcasters'
programming is generally not subject to scrutiny under the public
forum doctrine. Id. at 675. Prior to Forbes, there was no clearly estab-
lished constitutional prohibition on making content-based or
viewpoint-based decisions on whom to include in publicly sponsored
debates. Indeed, even under Forbes, a government-sponsored debate
can exclude candidates as long as the exclusion is a"reasonable,
viewpoint-neutral exercise of journalistic discretion." Id. at 683. And
prior to Forbes, the Eleventh Circuit, in 1990, had upheld the decision
of a Georgia public television station to include only the Republican
and Democratic nominees, and to exclude the Libertarian Party nomi-
nees, in debates it was sponsoring, even though the court found that
that decision was "content-based." Chandler v. Georgia Pub. Tele-
comm. Comm'n, 917 F.2d 486, 488-89 (11th Cir. 1990).

Because it was not clearly established in the fall of 1997 that the
First Amendment restricted content-based or viewpoint-based deci-
sions to exclude candidates from publicly sponsored debates, the dis-
trict court correctly afforded Trani qualified immunity.

IV

The district court dismissed the private parties-- Wilder, WRVA,
and WNVT -- because a claim under 42 U.S.C. § 1983 requires that
the defendant be fairly said to be a state actor and DeBauche failed
to allege facts that would have permitted the court to conclude that
these defendants were state actors. We agree with the district court's
conclusion.

DeBauche's complaint, which is based on 42 U.S.C.§ 1983,
alleges that all of the defendants denied her federal constitutional
rights under color of law because VCU and Trani were state actors
and Wilder, WRVA, and WNVT were de facto state actors. She
acknowledges that in April 1997, before VCU and Trani were
involved, Wilder initiated the debate by inviting the Republican and
Democratic gubernatorial candidates to a radio debate, but she con-
tends that Wilder's later cooperation with VCU and Trani, who were
concededly state actors, made his conduct state action. As she main-
tains, "VCU contributed substantial, extraordinary funding and other

9
institutional resources to affect all aspects of Debate Virginia." As to
the broadcasting companies, she states that "WNVT and WRVA
engaged in unconstitutional political manipulation and viewpoint dis-
crimination together with VCU and defendants Trani and Wilder . . .
all in furtherance of a mutually beneficial state-sponsored and funded
enterprise." From these allegations, she argues that the joint involve-
ment of private and public bodies in discriminatory action, "even pri-
vate action backed-up or endorsed by a public body, constitutes state
action for purposes of the Fourteenth Amendment."

To implicate 42 U.S.C. § 1983, conduct must be"fairly attributable
to the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982);
see also Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982) (observing
that § 1983's "under color" of law requirement is equivalent to the
"state action" requirement of the Fourteenth Amendment (citing
United States v. Price, 383 U.S. 787, 794 n.7 (1966))). The person
charged must either be a state actor or have a sufficiently close rela-
tionship with state actors such that a court would conclude that the
non-state actor is engaged in the state's actions. See, e.g., Edmonson
v. Leesville Concrete Co., 500 U.S. 614, 620 (1991) ("Although the
conduct of private parties lies beyond the Constitution's scope in most
instances, governmental authority may dominate an activity to such
an extent that its participants must be deemed to act with the authority
of the government and, as a result, be subject to constitutional con-
straints"); Lugar, 457 U.S. at 941 (noting that "a private party's joint
participation with state officials in the seizure of disputed property is
sufficient to characterize that party as a `state actor' for purposes of
the Fourteenth Amendment"); Adickes v. S. H. Kress & Co., 398 U.S.
144, 170-71 (1970) (holding that a private party that engaged in racial
discrimination as part of a state-enforced custom would be a state
actor for purposes of 42 U.S.C. § 1983). Thus, the Supreme Court has
held that private activity will generally not be deemed "state action"
unless the state has so dominated such activity as to convert it into
state action: "Mere approval of or acquiescence in the initiatives of
a private party" is insufficient. Blum v. Yaretsky, 457 U.S. 991, 1004
(1982). Stated differently, to become state action, private action must
have a "sufficiently close nexus" with the state that the private action
"`may be fairly treated as that of the State itself.'" American Mfrs.
Mut. Ins. Co. v. Sullivan, 119 S. Ct. 977, 986 (1999) (quoting Blum,
457 U.S. at 1004). And the establishment of the close nexus "depends

10
on whether the State `has exercised coercive power or has provided
such significant encouragement . . . that the choice must in law be
deemed to be that of the State.'" Id.

DeBauche maintains that the joint participation of public and pri-
vate actors in organizing and conducting Debate Virginia transformed
the private actors' conduct into "state action," relying principally on
Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) (defin-
ing a "joint participation" test for finding state action). But De-
Bauche's argument does not account for the actual holding in Burton
nor the Supreme Court's later refinements which explain what is
required to convert private action into state action. In Burton, a gov-
ernment agency leased space in a public parking garage to a restau-
rant that discriminated against blacks. The Court identified a
symbiotic relationship in which "profits earned by discrimination not
only contribute[d] to, but also [were] indispensable elements in, the
financial success of a governmental agency." Id. at 724 (emphasis
added). In the "peculiar facts [and] circumstances present" in Burton,
id. at 726, the Supreme Court concluded that"[t]he State ha[d] so far
insinuated itself into a position of interdependence" with the restau-
rant that the joint participation of public and private actors made the
private party's conduct state action restricted by the Fourteenth
Amendment. Id. at 725. That holding, however, certainly does not
stand for the proposition that all public and private joint activity sub-
jects the private actors to the requirements of the Fourteenth Amend-
ment. See Blum, 457 U.S. at 1011; Jackson v. Metropolitan Edison
Co., 419 U.S. 345, 357-58 (1974); see also Lebron v. National R.R.
Passenger Corp., 513 U.S. 374, 409 (1995) (O'Connor, J., dissenting)
(noting that Burton's holding was "quite narrow" and questioning its
continuing viability). In its more recent discussion of the subject, the
Supreme Court articulates the numerous limits to the joint participa-
tion test, noting that "Burton was one of our early cases dealing with
`state action' . . . and later cases have refined the vague `joint partici-
pation' test embodied in that case." Sullivan , 119 S. Ct. at 988.

Applying the principles elucidated and refined by the Supreme
Court, we have recognized four exclusive circumstances under which
a private party can be deemed to be a state actor:

(1) when the state has coerced the private actor to commit
an act that would be unconstitutional if done by the state; (2)

11
 when the state has sought to evade a clear constitutional
duty through delegation to a private actor; (3) when the state
has delegated a traditionally and exclusively public function
to a private actor; or (4) when the state has committed an
unconstitutional act in the course of enforcing a right of a
private citizen.

Andrews v. Federal Home Loan Bank of Atlanta, 998 F.2d 214, 217
(4th Cir. 1993). "If the conduct does not fall into one of these four
categories, then the private conduct is not an action of the state." Id.

The facts alleged in DeBauche's amended complaint show that
Wilder, a radio talk show host, first invited the Republican and Dem-
ocratic candidates for governor to debate campaign issues on his radio
talk show. When VCU offered to provide a place for the debate on
its campus, Wilder accepted, so that, as finally arranged, Wilder "con-
vened and moderated" the debate, which took place at VCU's campus
and which was broadcast on radio and television by WRVA, WNVT,
and other stations. The complaint alleged that all of the defendants
"co-sponsored, planned, promoted, managed, executed and paid for"
the debate.

However these facts are characterized, the arrangement described
between the state actors and private actors does not transform the pri-
vate actors' conduct into state action. As distinguished from Burton,
DeBauche's amended complaint does not describe facts that suggest
interdependence such that VCU relied on the private defendants for
its continued viability. While the state actors, VCU and Trani, worked
with Wilder in the organization and promotion of the debate, their
conduct cannot be thought to have controlled his conduct to such an
extent that his conduct amounted to a surrogacy for state action.
Moreover, they did not control the stations which only agreed to
broadcast the debate. More pertinently, when we apply Andrews to
these facts, we conclude that none of the four circumstances that we
identified in Andrews exists in this case.

First, DeBauche has not alleged that VCU or any other arm of the
state coerced any of the private defendants into committing an act that
the state could not constitutionally undertake. The alleged unconstitu-
tional act -- the failure to invite DeBauche to participate in the debate

12
-- resulted, according to DeBauche's amended complaint, from the
initial, independent decision by Wilder to invite only Gilmore and
Beyer to the debate. There is no suggestion that Wilder's decision to
invite only them, or the stations' decision to broadcast the debate, was
the result of coercion by VCU or Trani. In fact, the complaint states
that the three private party defendants were "willful participants" in
the organization of the debate.

The second Andrews circumstance is also not present in this case.
DeBauche does not allege that VCU or any other state actor sought
to evade a clear constitutional duty by delegating responsibility to a
private party. First, there was no allegation of delegation. According
to the complaint, Wilder decided on his own to host a debate and
VCU offered, months later, to provide a site on its campus. VCU
agreed to assist Wilder with his project, but there is no allegation that
VCU delegated any of its governmental responsibilities to him or to
the broadcast stations. Second, there are no allegations that suggest
that VCU was using the private parties to evade a"clear constitutional
duty." Indeed, nothing that was done regarding Debate Virginia vio-
lated any constitutional right that was clearly established at the time
the debate was organized. See Part III, supra.

The third Andrews circumstance -- when"the state has delegated
a traditionally and exclusively public function to a private actor" --
is present only when the function at issue is "traditionally the
exclusive prerogative of the State." United Auto Workers v. Gaston
Festivals, Inc., 43 F.3d 902, 906 (4th Cir. 1995) (internal quotation
marks and citations omitted) (holding that a private entity which orga-
nized a public festival held on public streets and sidewalks and sup-
ported in part with public money was not engaged in state action).
This category is very narrow. See id. at 907. For example, the opera-
tion of a town has been held to be a function that is traditionally the
exclusive prerogative of government. See Marsh v. Alabama, 326
U.S. 501 (1946). The hosting of political debates, conversely, is not
within the exclusive prerogative of the government. While public
broadcasters and state universities often sponsor such debates, so do
private broadcasters and private universities. Indeed, hosting debates
could never be the exclusive prerogative of the government because
the First Amendment protects private parties' rights to put on (and
select the content of) debates. See Hurley v. Irish-American Gay, Les-

13
bian & Bisexual Group of Boston, Inc., 515 U.S. 557, 569-70 (1995)
(holding that "a private speaker does not forfeit constitutional protec-
tion simply by combining multifarious voices"); Turner Broadcasting
Sys., Inc. v. FCC, 512 U.S. 622, 636 (1994).

Finally, the fourth Andrews circumstance is completely irrelevant
as DeBauche does not allege that VCU or any other arm of the state
enforced any right of any of the private party defendants.

Because the allegations of DeBauche's amended complaint make
it quite clear that the actions attributable to Wilder, WRVA, and
WNVT amounted to their independently-motivated, private actions,
rather than "state action," DeBauche fails to state a claim under 42
U.S.C. § 1983 against the private defendants for which relief can be
granted. See Fed. R. Civ. P. 12(b)(6).

V

Finally, DeBauche challenges the district court's order awarding
attorneys fees and costs to Wilder, WRVA, and WNVT under 42
U.S.C. § 1988(b)1 and holding her attorneys jointly and severally
responsible for the fees and costs awarded to WRVA and WNVT
under 28 U.S.C. § 1927.2

The district court found that DeBauche's attempt"to make [Wil-
der] a state actor because VCU only helped execute the debate was
baseless and unreasonable." Similarly, the court concluded that De-
Bauche's suit against WRVA and WNVT was "without foundation."
_________________________________________________________________
1 Section 1988(b) provides in relevant part:

In any action or proceeding to enforce a provision of section[ ]
. . . 1983 . . . the court, in its discretion, may allow the prevailing
party . . . a reasonable attorney's fee as part of the costs.
2 Section 1927 provides in relevant part:

Any attorney or other person admitted to conduct cases in any
court . . . who so multiplies the proceedings in any case unrea-
sonably and vexatiously may be required by the court to satisfy
personally the excess costs, expenses, and attorneys' fees reason-
ably incurred because of such conduct.

14
These two broadcasters "were not even alleged to have played a role
in the decision to exclude [DeBauche] from the debate." For these
reasons, the court exercised the discretion conferred by 42 U.S.C.
§ 1988(b) to award Wilder $10,618.20 in fees and costs; WRVA,
$13,922.80; and WNVT, $23,935.70.

In addition to the award under § 1988, the court held DeBauche's
attorneys jointly and severally liable for the awards made in favor of
the two broadcast stations under 28 U.S.C. § 1927. The court noted
that

it was evident that DeBauche was tying the private broad-
casting defendants with a tenuous string to Virginia Com-
monwealth University in order to show they were exhibiting
state action. It was clear from the beginning that Wilder
alone made the decision to exclude her from Debate Vir-
ginia and that the private defendants and the University
were not in some collaboration about that Wilder decision.

The court concluded that DeBauche's attorneys' actions against the
broadcast stations were "an unreasonable and intentional pursuit of a
frivolous position which warrants an award under Section 1927, par-
ticularly in light of DeBauche's financial situation and the Court's
question as to how her lawsuit has been funded."

DeBauche contends that the private defendants did not make "the
necessary evidentiary showing" to justify an award under § 1988. In
addition, she maintains that the § 1988 award was improper because
the court did not consider her inadequate financial means to pay such
an award. She provided the court with her income tax returns for the
three years preceding the award, showing that in 1995 her adjusted
gross income was $17,639; in 1996, $15,146; and in 1997, $8,982. As
to the § 1927 award, DeBauche argues that the statutory requirements
that the proceedings be multiplied unreasonably and vexatiously
could not be met as a matter of law because the conduct upon which
the award was based was the mere filing of an amended complaint.
We address these points in order.

A

Section 1988(b) confers discretion on courts to award attorneys
fees to the prevailing party in an action brought under, inter alia, 42

15
U.S.C. § 1983. When the prevailing party is the defendant, the attor-
neys fees should be awarded if the court finds "`that the plaintiff's
action was frivolous, unreasonable, or without foundation, even
though not brought in subjective bad faith.'" Hughes v. Rowe, 449
U.S. 5, 14 (1980) (quoting Christiansburg Garment Co. v. EEOC, 434
U.S. 412 (1978)). Stated otherwise, "[t]he plaintiff's action must be
meritless in the sense that it is groundless or without foundation," but
there need not be any subjective bad faith on the part of the plaintiff.
Id.

While we might be persuaded that the record does not show that
DeBauche brought her action in bad faith, we cannot agree that the
district court abused its discretion in finding her claim to be "ground-
less or without foundation." Both the Supreme Court and our court
have been very clear about two relevant points of law: (1) the consti-
tutional protections of free speech and equal protection apply only
against governmental action, and not against private action, see
Edmonson, 500 U.S. at 619; Hudgens v. NLRB , 424 U.S. 507, 513
(1976); Andrews, 998 F.2d at 216, and (2) the circumstances where
a private party and a government are so intertwined that the private
conduct can be considered "state action" for constitutional purposes
are limited to a few defined circumstances, see Edmondson, 500 U.S.
at 620; Andrews, 998 F.2d at 217. The Supreme Court has stated that
for a private party's decision to be considered"state action," there
must be so much coercion or encouragement that "the choice must in
law be deemed to be that of the State." Blum , 457 U.S. at 1004 (cita-
tions omitted).

The amended complaint that DeBauche filed makes it clear that the
choice not to include DeBauche in Debate Virginia was made by Wil-
der, not by VCU, and it was not the product of any coercion by the
state. Indeed, the invitations to the Republican and Democratic candi-
dates were extended before VCU was even involved. DeBauche did
allege significant involvement by the state in making a facility avail-
able and in helping to promote the debate, but this assistance to pri-
vate parties does not transform the private parties' conduct into state
action. We have articulated the four exclusive circumstances under
which private conduct will be deemed "state action," noting that if
conduct "does not fall into one of these four categories, then the pri-
vate conduct is not an action of the state." Andrews, 998 F.2d at 217.

16
Even though DeBauche could not fit her allegations into any of the
four articulated circumstances she nevertheless pursued her action
against the private parties, claiming that they violated her constitu-
tional rights as state actors. In these circumstances, we cannot con-
clude that the district court abused its discretion in ordering the
payment of fees and costs under § 1988.

DeBauche and the American Civil Liberties Union, as amicus,
have suggested that ordering DeBauche to pay attorneys fees and
costs will chill lawsuits by future individuals who feel that their con-
stitutional rights have been violated. But "[w]hen a court imposes fees
on a plaintiff who has pressed a `frivolous' claim, it chills nothing
that is worth encouraging." Hutchinson v. Staton, 994 F.2d 1076,
1081 (4th Cir. 1993). In fact, in the circumstances of this case, it can
just as easily be argued that groundless lawsuits like DeBauche's
might chill broadcasters' and journalists' exercise of their First
Amendment rights in organizing political debates.

While we find no abuse of discretion in the decision to order De-
Bauche to pay fees and costs, we do believe that DeBauche's conten-
tion that her financial circumstances should be taken into account has
merit. "The policy of deterring frivolous suits is not served by forcing
the misguided [§ 1983] plaintiff into financial ruin simply because he
prosecuted a groundless case." Arnold v. Burger King Corp., 719 F.2d
63, 68 (4th Cir. 1983). The record shows that DeBauche's combined
income for the three years preceding her lawsuit was less than
$42,000. Without more information about her resources or her back-
ing for this lawsuit, it would appear that a $48,000 fee award against
her would force her into "financial ruin." Because the district court
does not appear to have taken into account the financial resources
available to DeBauche, we must vacate and remand this part of the
district court's judgment.

The defendants argue that the district court took DeBauche's finan-
cial means into account when it made her attorneys jointly and sever-
ally liable for a portion of the sanction. This, however, is not an
appropriate way in which to take into account DeBauche's financial
means because, under joint and several liability, she would still
remain liable for the full amount of the award. If the court intended

17
to split responsibility for paying fees and costs between DeBauche
and her attorneys, it may do so on remand.

B

DeBauche contends also that the imposition of sanctions jointly
and severally on her attorneys under 28 U.S.C. § 1927 is error as a
matter of law because that provision does not cover the circumstances
found by the district court. Section 1927 provides:

Any attorney or other person admitted to conduct cases . . .
who so multiplies the proceedings in any case unreasonably
and vexatiously may be required by the court to satisfy per-
sonally the excess costs, expenses, and attorneys' fees rea-
sonably incurred because of such conduct.

28 U.S.C. § 1927. The unambiguous text of§ 1927 aims only at attor-
neys who multiply proceedings. It "does not distinguish between win-
ners and losers, or between plaintiffs and defendants. The statute is
indifferent to the equities of a dispute and to the values advanced by
the substantive law." Roadway Express, Inc. v. Piper, 447 U.S. 752,
762 (1980). Rather, this provision "is concerned only with limiting
the abuse of court processes." Id. Thus, an attorney who files a meri-
torious claim and wins a substantial verdict may still be assessed
sanctions under § 1927 if, during the case, he"multiplies the proceed-
ings . . . unreasonably and vexatiously." Likewise, an attorney who
files a meritless claim may not be sanctioned under§ 1927 if he does
not engage in such conduct. Section 1927 focuses on the conduct of
the litigation and not on its merits.

In this case, DeBauche's attorneys filed only two documents, a
complaint and an amended complaint, and, as to WRVA and WNVT
(for whose fees and costs they have been made responsible), they
filed only one document, the amended complaint in which WRVA
and WNVT were first made parties. We conclude as a matter of law
that the filing of a single complaint cannot be held to have multiplied
the proceedings unreasonably and vexatiously and therefore that
§ 1927 cannot be employed to impose sanctions.

18
This is not to say, however, that the district court lacks authority
to impose sanctions for the filing of a frivolous complaint. Federal
Rule of Civil Procedure 11 allows sanctions against attorneys and par-
ties who file pleadings that contain "claims[or] other legal conten-
tions [that] are [not] warranted by existing law or by a nonfrivolous
argument for the extension, modification, or reversal of existing law
or the establishment of new law," or factual allegations that have nei-
ther evidentiary support nor the likelihood of forthcoming evidentiary
support. Fed. R. Civ. P. 11(b)(2), (b)(3), (c).

Accordingly, we also vacate the sanctions imposed under § 1927
and remand to permit the district court to consider sanctions under
Rule 11. Whether to impose Rule 11 sanctions, however, is commit-
ted to the discretion of the district court.

The judgment of the district court is

AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED.

KING, Circuit Judge, dissenting in part:

Sue Harris DeBauche, the Reform Party's 1997 candidate for Gov-
ernor of Virginia, alleged that two highly influential employees of
Virginia Commonwealth University conspired with others to exclude
her from a broadcast debate featuring the Democratic and Republican
gubernatorial candidates. According to the First Amended Complaint,
VCU president Eugene Trani and Distinguished Professor L. Douglas
Wilder were motivated by DeBauche's political views to discriminate
against her.

DeBauche's allegations, which must be taken as true at this initial
stage of the proceedings, state a claim for relief against Trani and
Wilder pursuant to 42 U.S.C. § 1983. By October 1997, it had been
clearly established for at least twelve years that the First Amendment
forbids the government to exclude from its forums those speakers
with whom it disagrees, solely by reason of that disagreement.

Accordingly, I concur only in Part II of the majority's opinion,

19
which affirms the district court's dismissal of DeBauche's claims
against Trani in his official capacity. I dissent from (1) the majority's
holding in Part III that Trani was entitled to qualified immunity with
regard to the claims against him in his individual capacity; (2) the
majority's affirmance in Part IV of the district court's dismissal of the
claims against Wilder; and (3) the majority's conclusion in Part V that
Wilder, WRVA, and WNVT may be entitled to attorneys' fees and
court costs.1

I.

A.

We are, of course, compelled to view the facts alleged by De-
Bauche in the light most favorable to her. See Ostrzenski v. Seigel,
177 F.3d 245, 251 (4th Cir. 1999) (citation omitted). The district
court's dismissal of DeBauche's complaint pursuant to Fed. R. Civ.
P. 12(b)(6) can therefore be sustained "only if it is clear that no relief
could be granted under any set of facts that could be proved consistent
with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73
(1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). More-
over, in accordance with federal notice-pleading standards, we are
bound to construe the complaint liberally. Anderson v. Foundation for
Advancement, Educ. & Employment of Am. Indians, 155 F.3d 500,
505 (4th Cir. 1998) (citing Conley at 45-46).

The complaint alleges generally that "[t]he actions of the defen-
dants with respect to Ms. DeBauches's [sic] request for access, partic-
ipation and expression in Debate Virginia . . . were taken pursuant to
the VCU's policies, customs and/or practices and were authorized . . .
by the defendants or their agents functioning at a policy making
level." First Amended Complaint [hereinafter FAC] at ¶ 56. "[T]he
defendants . . . have discriminated against Ms. DeBauche without a
_________________________________________________________________
1 In addition to concurring in Part II of the majority's opinion, I agree
with its affirmance in Part IV of the district court's dismissal of the
claims against WRVA and WNVT, based on DeBauche's failure to suffi-
ciently allege that the broadcasters engaged in state action. I also agree
with the majority's holding in Part V that the filing of a complaint cannot
support an award of sanctions under 28 U.S.C. § 1927.

20
reasonable basis and have unlawfully discriminated against her based
on her viewpoint . . . ." FAC at ¶ 64."[T]he defendants' policies, cus-
toms and/or practices favor the speech of candidates of the major
political parties over speech of candidates from minority political par-
ties and thereby invert cherished First Amendment values promoting
dissent, an open electoral process, and free and uninhibited public
debate of political questions." FAC at ¶ 71.

DeBauche specifically alleged that Trani was responsible for
implementing VCU's policies, and that the enforcement of those poli-
cies in this case was achieved with the "active participation, knowl-
edge and/or acquiescence" of Trani and the other defendants. FAC at
¶¶ 8, 68. Wilder, in particular, was alleged to have "had a subjective
appreciation that [his] acts would deprive Ms. DeBauche of her con-
stitutional rights . . . ." FAC at ¶ 84.

B.

The preceding allegations clearly state a § 1983 claim against Trani
and Wilder. Taking the averments in the complaint at face value, both
defendants would be liable as a "person who, under color of any stat-
ute, ordinance, regulation, custom, or usage, of any State . . . subjects,
or causes to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . ." 42 U.S.C. § 1983.

The majority nonetheless affirms the district court's dismissal of
DeBauche's complaint against these defendants, holding that (1)
Trani is entitled to qualified immunity on the ground that he violated
no clearly established constitutional right; and (2) Wilder was not, as
a matter of law, a state actor. Ante at 7-8, 10-13. Both conclusions are,
in my judgment, erroneous.

1.

The majority identifies the right sought to be vindicated in this case
as the First Amendment's prohibition of "content-based or viewpoint-
based decisions to exclude candidates from publicly sponsored
debates." Ante at 9. According to the majority, our sister circuit's rul-

21
ing in Chandler v. Georgia Pub. Telecomm. Comm'n , 917 F.2d 486
(11th Cir. 1990), and the Supreme Court's recent holding in Arkansas
Educ. Television Comm'n v. Forbes, 523 U.S. 666 (1998), rejecting
arguments that third-party candidates must be included in political
debates sponsored by public television stations, preclude the possibil-
ity that DeBauche's right to be included in Debate Virginia was
clearly established.

To the contrary, DeBauche's right to inclusion became clear more
than five years prior to Chandler, with the Supreme Court's decision
in Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S.
788 (1985). Cornelius employed the analytical framework developed
two years earlier in Perry Educ. Ass'n v. Perry Local Educators'
Ass'n, 460 U.S. 37 (1983), with respect to the"recurring and trouble-
some issue of when the First Amendment gives an individual or group
the right to engage in expressive activity on government property."
Cornelius, 473 U.S. at 815 (Blackmun, J., dissenting).

Under Perry and Cornelius, it must first be determined whether the
property to which the speaker desires access is a traditional public
forum, a designated public forum, or a nonpublic forum. Perry, 460
U.S. at 45-46; Cornelius, 473 U.S. at 800, 802. If the forum is public,
either by tradition or otherwise, speakers may only be excluded to
serve a compelling governmental interest. Cornelius, 473 U.S. at 800.
Conversely, if the forum is nonpublic (like Debate Virginia), restric-
tions on speech need only be reasonable in light of the property's
intended purpose. Id. at 806. A speaker may properly be excluded
from a nonpublic forum if, for example, she is not a member of the
class of speakers for whose benefit the forum was created, or if she
wishes to address a topic not within the purpose of the forum. Id.

Even in the case of a nonpublic forum, however, it is abundantly
clear that a speaker may not be excluded on the basis of her view-
point. As Justice O'Connor stated in Cornelius , "the government vio-
lates the First Amendment when it denies access to a speaker solely
to suppress the point of view he espouses on an otherwise includible
subject." Id. at 806. Moreover, "[t]he existence of reasonable grounds
for limiting access to a nonpublic forum . . . will not save a regulation

22
that is in reality a facade for viewpoint-based discrimination." Id. at
811 (citations omitted).2

DeBauche alleged that Trani, acting on behalf of a state university,
excluded her from Debate Virginia to prevent her from publicly
expressing her political views. She was indisputably a member of the
class of speakers, i.e., ballot-qualified candidates for the office of
Governor of Virginia, for whom the forum was created. There is like-
wise no dispute that DeBauche wished to speak on the same topics
as her Democratic and Republican challengers. Consequently, under
Cornelius, DeBauche stated a viable § 1983 claim upon which she
must prevail if she can adduce sufficient proof that she was indeed
discriminated against on the basis of her viewpoint.

Neither Chandler nor Forbes altered the basic rule of Cornelius.
The debates at issue in those cases were organized and broadcast by
state-owned television stations. Although Justice Kennedy's opinion
in Forbes acknowledged some uncertainty as to whether the forum
doctrine should apply in the "very different context of public televi-
sion broadcasting," Forbes, 523 U.S. at 673, the Court ultimately
decided that the doctrine should apply, at least with regard to political
debates. Id. at 675 ("Although public broadcasting as a general matter
does not lend itself to scrutiny under the forum doctrine, candidate
debates present the narrow exception to the rule.").

But even a broadcaster cannot do what Trani is alleged to have
done in this case:
_________________________________________________________________

2 Cornelius involved a challenge by certain legal defense funds to their
exclusion from the Combined Federal Campaign (CFC), an annual char-
ity drive targeted at federal employees. The plaintiffs maintained that the
prohibition against their participation in the CFC violated their First
Amendment right to solicit charitable contributions. The Court held that
the CFC was a nonpublic forum, and that the government could reason-
ably exclude controversial groups whose participation would disrupt the
workplace and cause the drive to be less successful. The Court neverthe-
less remanded the case for the lower courts to determine whether the
plaintiffs' exclusion was motivated by the government's desire to sup-
press their viewpoints.

23
 [T]he requirement of neutrality remains; a broadcaster can-
not grant or deny access to a candidate debate on the basis
of whether it agrees with a candidate's views. Viewpoint
discrimination in this context would present not a calculated
risk, . . . but an inevitability of skewing the electoral dia-
logue . . . . The debate's status as a nonpublic forum did not
give [the defendant] unfettered power to exclude any candi-
date it wished.

Id. at 676, 682 (citation, internal quotation marks, and brackets omit-
ted); accord Chandler, 917 F.2d at 489 ("[W]e can safely predict that
the use of state instrumentalities to suppress unwanted expressions in
the marketplace of ideas would authorize judicial intervention to vin-
dicate the First Amendment.").

At bottom, neither VCU nor Trani is a broadcaster. There is no jus-
tification, then, for the majority's assertion that either Chandler or
Forbes -- pertaining to broadcasters -- announced the standard
against which Trani was expected to measure his conduct. That stan-
dard was set much earlier, in Cornelius. Viewed in their proper con-
text, Chandler and Forbes merely extended the rule of Cornelius to
encompass the peculiar realm of public television and radio broad-
casters that organize political debates.

It is no answer to say that Cornelius was not a debate case, and
therefore has no application here. Cornelius was a forum case, and a
political debate is perhaps the quintessential forum. The law requires
that qualified immunity be denied government officials who trans-
gress those rights "of which a reasonable person would have known."
Edwards v. City of Goldsboro, 178 F.3d 231, 250 (4th Cir. 1999)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A reason-
able person in Trani's position would have been aware that Cornelius
forbade the type of viewpoint discrimination in which he is alleged
to have engaged.3 Consequently, I must conclude that Trani is not
entitled to qualified immunity on the face of the complaint.
_________________________________________________________________
3 It is likewise immaterial that WRVA and WNVT were alleged to have
participated in the decision to exclude DeBauche. Although these private
broadcasters are not state actors and are thus impervious to this lawsuit,
ante at 11-14 (citing Andrews v. Federal Home Loan Bank of Atlanta,
998 F.2d 214 (4th Cir. 1993)), Trani cannot cloak himself in their invul-
nerability. The mere happenstance that broadcasters are present on the
periphery does not limit our consideration of the relevant precedents to
Forbes and Chandler.

24
2.

The majority asserts that Wilder, in his role as a radio personality
and political figure, cannot be considered a state actor with regard to
his involvement in Debate Virginia. The majority overlooks, how-
ever, that Wilder was also a contract employee of VCU. The materials
submitted below reveal that Wilder was appointed in 1995 to the posi-
tion of Distinguished Professor in VCU's Center for Public Policy.
See Appendix to Plaintiff's Opposition to the State Defendants'
Motion to Dismiss, at 16 (J.A. 57). Indeed, the record contains no
fewer than eight letters pertaining to Debate Virginia that were
drafted by Wilder or his staff on VCU's letterhead. During De-
Bauche's ongoing efforts to be included in the debate, she and other
members of the Virginia Reform Party attempted to telephone Wilder
at his VCU offices. FAC at ¶¶ 46, 48.

Although the district court granted Wilder's motion to dismiss
without considering any materials beyond the complaint, we are not
bound to follow the same path. See McNair v. Lend Lease Trucks,
Inc., 62 F.3d 651, 656 (4th Cir. 1995) (court of appeals has the discre-
tion to note a critical fact contained in a document submitted to, but
not considered by, the district court in ruling on a motion under Rule
12(b)(6), where the parties are aware that materials outside the plead-
ings are before the court), reasoning adopted by McNair v. Lend
Lease Trucks, 95 F.3d 325, 328 n.3 (4th Cir. 1996) (en banc) (vacat-
ing remainder of panel decision).

Absent discovery, it is impossible to ascertain the extent to which
Wilder acted on behalf of VCU with regard to the organization and
administration of Debate Virginia. Insofar as Wilder was indeed
attempting to further the interests of his university employer, he was
plainly engaging in state action within the contemplation of § 1983,
and is therefore potentially liable to DeBauche. 4 The question cannot,
in any event, be resolved as a matter of law on a motion to dismiss.
_________________________________________________________________

4 For the reasons I have expressed supra in Section I.B.1., Wilder --
like Trani -- would not be entitled to qualified immunity on the facts as
alleged by DeBauche.

25
II.

Because I would reverse the district court's dismissal of De-
Bauche's § 1983 claim against Wilder, it follows that I would like-
wise reverse the concomitant award of fees and costs. Though I agree
with the majority that WRVA and WNVT cannot be deemed state
actors in this case, see supra note 1, I do not think that DeBauche's
assertions to the contrary are so "groundless or without foundation"
as to justify a fee award under § 1988(b). Ante at 16 (noting standard).
Particularly in light of Wilder's professional association with WRVA,
I would not discount the possibility that DeBauche could have credi-
bly alleged that Wilder coerced the radio station to adopt his position
with regard to DeBauche's exclusion from the debate, thereby satisfy-
ing the first Andrews scenario, see ante at 12 (noting that a private
party may engage in state action where "the state has coerced the pri-
vate actor to commit an act that would be unconstitutional if done by
the state").5

III.

This is an important case that has come to a premature conclusion.
State colleges and universities are places in which the infinite diver-
sity of human thought should be celebrated. Such institutions ought
not be in the business of suppressing divergent viewpoints, a concept
antithetical to the Constitution and to the cherished values upon which
this nation was founded. We can only hope that, in this case, Sue Har-
ris DeBauche was not silenced on account of her views as to how the
Commonwealth of Virginia could best be governed. Unfortunately, as
the result of the majority's decision today, we may never know.
_________________________________________________________________

5 Nor do I believe that sanctions pursuant to Rule 11 are appropriate in
this case. Given the seriousness of the alleged conduct, the Supreme
Court's consistent condemnation of viewpoint discrimination, and the
unusual facts present here, DeBauche could make a nonfrivolous argu-
ment for the modification or extension of existing law to hold the broad-
casters liable as state actors.

26