RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0298p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff, -
JEFFREY ALAN SALKIL,
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No. 05-3051
KIMBERLY M. SKAGGS; EQUAL JUSTICE
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FOUNDATION, >
Appellants, -
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v.
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MOUNT STERLING TOWNSHIP POLICE DEPARTMENT,
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et al.,
Defendants, -
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Defendant-Appellee. -
VILLAGE OF MT. STERLING,
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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 02-00106—James L. Graham, District Judge.
Argued: January 31, 2006
Decided and Filed: August 15, 2006
Before: RYAN, CLAY, and GILMAN, Circuit Judges.
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COUNSEL
ARGUED: Richard S. Walinski, COOPER & WALINSKI, Toledo, Ohio, for Appellants. Tabitha
D. Justice, SUBASHI, WILDERMUTH & BALLATO, Dayton, Ohio, for Appellee. ON BRIEF:
Richard S. Walinski, COOPER & WALINSKI, Toledo, Ohio, Kimberly M. Skaggs, EQUAL
JUSTICE FOUNDATION, Columbus, Ohio, for Appellants. Tabitha D. Justice, Lynnette P.
Ballato, SUBASHI, WILDERMUTH & BALLATO, Dayton, Ohio, for Appellee.
CLAY, J., delivered the opinion of the court, in which GILMAN, J., joined. RYAN, J.
(pp. 11-14), delivered a separate dissenting opinion.
1
No. 05-3051 Salkil v. Mt. Sterling Township Police Dep’t, et al. Page 2
_________________
OPINION
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CLAY, Circuit Judge. Kimberly Skaggs (“Skaggs”) and Equal Justice Foundation (“EJF”),
appeal an order of the United States District Court for the Southern District of Ohio, sanctioning
them pursuant to Rule 11 of the Federal Rules of Civil Procedure and awarding Defendant, Village
of Mt. Sterling (“the Village”), attorneys’ fees under 28 U.S.C. § 1927. The district court imposed
sanctions and attorneys’ fees on Skaggs and the EJF for Skaggs’ conduct as an attorney for Jeffrey
Alan Salkil in his civil rights action under 42 U.S.C. § 1983. Because we find the district court
rendered its decision under a clear misapprehension of Skaggs’ conduct, as well as with the benefit
of hindsight, we hold that the district court abused its discretion and REVERSE the order of the
district court.
I.
BACKGROUND
A. Salkil’s Arrest and Incarceration
The events in this case arise out of Plaintiff Jeffrey Alan Salkil’s (“Salkil”) arrest and
subsequent 53 day incarceration in Mt. Sterling, Ohio. On October 1, 2000, Patrolman M. Stone of
the Mt. Sterling Township Police Department arrested Salkil for operating a motor vehicle under
the influence (“OMVI”), improper backing, leaving the scene of an accident, and a seat belt
violation. Stone placed Salkil in the Madison County jail, where Salkil allegedly refused to submit
to a urinalysis test. Because of Salkil’s alleged refusal to submit to testing, his driver’s license was
suspended pursuant to Ohio Revised Code § 4511.191.
Salkil was arraigned the next day. At the arraignment, Salkil completed an affidavit of
indigency and requested that the court appoint him counsel. The court denied Salkil’s request for
appointment of counsel, however, finding that Salkil was not indigent because of his employment
with a sports equipment company. Salkil then informed the court that because of the arrest and
incarceration, he no longer had a job. The judge thus instructed Salkil to file a new affidavit of
indigency, stating that he had no income.
After the arraignment, Salkil was returned to the Madison County jail. Although the court
had set bail at $1350, Salkil was unable to post the requisite bail bond. The municipal court would
not accept Salkil’s debit card, and no local bail bondsman would assist Salkil because he was not
an Ohio resident. Consequently, Salkil was forced to remain in jail.
Salkil remained in jail without access to counsel for a full month and a half. According to
Salkil, he was unable to timely file a new affidavit of indigency as instructed by the court because
the jail guards refused to give him the proper forms, despite his repeated requests. On November
1, 2000, Salkil completed and filed an affidavit of indigency and the court appointed Shirley
Hangsen as his counsel. Hangsen met with Salkil for the first time midway through November.
Finally, on November 22, 2000, after Salkil had spent 53 days in prison, he was released on his own
recognizance.
Thereafter, Hangsen negotiated a plea agreement with the Village of Mt. Sterling’s
prosecutor, Mark Pistick. Pistick agreed to drop all charges against Salkil in exchange for Salkil’s
agreement to release the Village from all liability under 42 U.S.C. § 1983. According to Salkil,
Hangsen informed him that the Village would not agree to any plea unless Salkil released the
No. 05-3051 Salkil v. Mt. Sterling Township Police Dep’t, et al. Page 3
Village from liability and that the release was standard practice. Against Hangsen’s advice, Salkil
refused to agree to the release.
Despite Salkil’s refusal to agree to the release, Hangsen sent a joint order of dismissal signed
by Pistick to the court. On January 22, 2001, the municipal court entered an order dismissing all
charges against Salkil. The order contained a finding, agreed upon during the plea negotiations, that
no probable cause existed for the OMVI. That finding was necessary to terminate the suspension on
Salkil’s license. Ohio Rev. Code § 4511.191(H)(1)(a). For reasons unclear from the record,
however, the suspension on Salkil’s license was never terminated.
Sometime after the order was entered, Pistick learned that Salkil had not agreed to the
release. Nonetheless, Pistick did not reinstate the charges. Salkil claims that he did not learn of the
dismissal until December of 2001, and that prior to that time, he assumed that plea negotiations were
ongoing because he would not agree to the release. Consequently, Salkil remained without a valid
driver’s license.
B. Salkil’s § 1983 Action
On January 31, 2002, Salkil filed a pro se complaint pursuant to 42 U.S.C. § 1983 in federal
district court alleging false arrest, abuse of process, false imprisonment, malicious prosecution, legal
malpractice, and various constitutional claims. Salkil named the following parties as defendants:
(1) Mt. Sterling Township Police Department and patrolman Stone; (2) Madison County Municipal
Court and municipal court judge David R. Pickens; (3) Madison County Sheriff’s Department and
officers Lilly, Creamer, Liska, and Cochran; (4) Madison County Jail and corrections officer
Lawrence; (5) Mt. Sterling Village Solicitor’s Officer and prosecutor Mark J. Pistick; (6) the law
firm of Tanner, Matthewson and Hangsen, and its partner Shirley Hangsen; and (7) the State of
Ohio. Discovery and numerous motions to dismiss ensued.
On March 4, 2003, approximately one year after the commencement of the action, Skaggs,
Executive Director of the EJF, entered her first appearance on behalf of Salkil. That same day,
Skaggs moved to amend Salkil’s complaint and eliminate Salkil’s claims against all but two
Defendants: the Village of Mt. Sterling and the Mt. Sterling Township Police Department. The
district court initially denied the motion to amend the complaint, but shortly thereafter, sua sponte
requested that Skaggs file a statement setting forth Salkil’s remaining claims and their respective
legal justification. In accordance with the district court’s request, Skaggs filed a statement of
Salkil’s remaining claims. The statement included a claim against the Village entitled “release of
liability,” based on the Village’s attempt to enter into a release-dismissal agreement with Salkil. The
statement also set forth the factual background that formed the basis for this claim, including Salkil’s
refusal to sign the release-dismissal agreement, and the Village’s decision not to reinstate the
charges against Salkil despite his refusal to sign the agreement.
Over the Village’s objections, the district court granted Salkil leave to file an amended
complaint. The district court expressly held that the Village’s objections to the claims were more
appropriately addressed in a motion to dismiss rather than in a denial of leave to amend. Pursuant
to the district court’s order, Skaggs filed an amended complaint on behalf of Salkil. The amended
complaint contained four claims: (1) a Sixth Amendment claim premised on Salkil’s inability to
access counsel while incarcerated; (2) a Fourth Amendment claim premised on Salikil’s 53 day
incarceration; (3) a Fourteenth Amendment claim premised on Defendants’ failure to accept Salkil’s
bond payment; and (4) a First Amendment claim, under the Petitions Clause, premised on the
Village’s attempt to force Salkil to sign a release-dismissal agreement waiving his right to sue. The
First Amendment claim was Salkil’s sole claim against the Village.
No. 05-3051 Salkil v. Mt. Sterling Township Police Dep’t, et al. Page 4
C. The Village’s Motion for Judgment on the Pleadings
On July 1, 2003, the Village simultaneously served Skaggs with a motion for judgment on
the pleadings and a letter requesting that Salkil withdraw his First Amendment claim against the
Village pursuant to Rule 11. The letter stated that the First Amendment claim was frivolous for the
reasons stated in the motion for judgment on the pleadings and warned that the Village would seek
sanctions if the First Amendment claim was not withdrawn. The motion for judgment on the
pleadings included a two page memorandum, which argued that Salkil’s “[First Amendment] claim
fail[ed] to present a cognizable action” based on existing case law. The Village reasoned as follows:
The Coughlen case, a copy of which is attached to this motion for the Court’s
convenience, holds that plea agreements releasing the village, police officers, and
prosecutors from misconduct do not support meritorious civil rights claims unless it
can be demonstrated that the criminal charges are filed frivolously in an attempt to
protect those committing misconduct from having to face potential civil liability. In
this case, given that Plaintiff has already admitted the underlying charges were
viable, but simply disagrees with the idea of a criminal plea agreement including a
waiver of civil liability, [Plaintiff] does not present a viable civil rights claim. In
fact, the United States Supreme Court in Town of Newton v. Rumery, 480 U.S. 386
(1987) declared such plea bargain releases are not against public policy and do not
impose coercive situations upon criminal defendants. Id. at 392-94. For these
reasons, Plaintiff’s Amended Complaint, as it brings a claim against the Village must
be dismissed with prejudice.
(J.A. at 253.) Nowhere in the motion for judgment on the pleadings or the memorandum in support
did the Village argue that Salkil did not have standing to bring the First Amendment claim.
Skaggs responded on behalf of Salkil accordingly, filing a memorandum in opposition to the
Village’s motion on July 25, 2003. In particular, Skaggs responded to the sole claim put forth in the
Village’s memorandum – that Salkil’s complaint failed to present a cognizable First Amendment
claim because the Supreme Court’s decision in Rumery rendered release-dismissal agreements
constitutional where the underlying charges are supported by evidence. Relying on this Court’s
decision in Coughlen, Skaggs argued that release-dismissal agreements are invalid unless
1) agreement is voluntary, 2) there is no prosecutorial misconduct, and 3) the agreement does not
adversely affect the relevant public interests. According to Skaggs, the agreement in this case was
not voluntary because Salkil refused to agree to it, and there was evidence of prosecutorial
misconduct in that Salkil spent 53 days in jail for an OMVI. She further argued that determining
the constitutionality of release-dismissal agreements required a case by case assessment, thereby
implying that a policy or practice requiring release-dismissal agreements in all cases could not pass
constitutional muster.
The Village replied on August 7, 2003, reiterating its position that the First Amendment right
to petition the government is not implicated by release-dismissal agreements. Ignoring the language
of the First Amendment guaranteeing the right to petition the government, the Village argued that
“[t]he First Amendment guarantees free speech and associational rights. No where [sic] in
Plaintiff’s Amended Complaint or memorandum in opposition does Plaintiff ever state how or why
the First Amendment provides some constitutionally protected right that deals with plea bargains
offered to criminal defendants.” (J.A. at 278.)
The court granted the Village’s motion for judgment on the pleadings on December 2, 2003,
construing the motion as one for failure to state a claim. The district court held that Salkil failed to
state a First Amendment claim because the Village never actually deprived Salkil of the right to
petition the government. According to the district court, an unsuccessful attempt to deprive a person
No. 05-3051 Salkil v. Mt. Sterling Township Police Dep’t, et al. Page 5
of a constitutional right is not actionable under § 1983. The district court reasoned that the attempt
was clearly unsuccessful because Salkil was able to maintain the instant § 1983 action and the
Village did not raise the release as a defense. On January 9, 2004, the district court dismissed
Salkil’s remaining claims. Two weeks later, on January 23, 2004, Skaggs moved to withdraw from
Salkil’s representation.
D. The Village’s Motion for Sanctions and Attorneys’ Fees
After the district court dismissed Salkil’s claims and Skaggs withdrew from his
representation, the Village moved for attorneys’ fees under Federal Rule of Civil Procedure 54(d)
and 42 U.S.C. § 1988(b), and sanctions under Federal Rule of Civil Procedure 11 and 28 U.S.C.
§ 1927 against both Salkil and Skaggs. The Village based its request for sanctions and attorneys’
fees on its position that Salkil’s First Amendment claim was frivolous. Skaggs responded to the
motion for attorneys’ fees and sanctions reiterating the position she had maintained throughout the
litigation that a policy or practice of demanding release-dismissal agreements may violate the First
Amendment right to petition the government. She further explained, albeit for the first time, that
Salkil was harmed by the Village’s policy because it delayed his ability to regain his license. Skaggs
also stated that she disagreed with the district court’s ruling on the motion for judgment on the
pleadings, but assuming that the district court ruled correctly, it was still a close question of law.
On April 28, 2004, the district court granted the Village’s motion for sanctions against
Skaggs pursuant to Rule 11. The court reasoned that despite the July 1, 2003 letter requesting that
Skaggs withdraw Salkil’s First Amendment claim or face Rule 11 sanctions, Skaggs continued to
assert the untenable legal theory that the Village violated Salkil’s First Amendment rights.1 The
district court seemingly believed that existing case law did not support the position of Skaggs and
the EJF because existing case law only addresses the enforceability of release-dismissal agreements
and not “mere offers” for such agreements. In its order dated April 28, 2004, the district explained,
stating:
As previously stated, while a party seeking to enforce a plea agreement has the
burden of proving [enforceability], this analysis does not apply to this case because
no one attempted or threatened to enforce the agreement. The release agreements are
not per se invalid as contrary to public policy . . . . Ms. Skaggs never argued for an
extension , modification, or reversal of the existing law, or the establishment of new
law. . . . Because this court finds that there was no reasonable basis in law and fact
for the position taken by Ms. Skaggs, this court finds that Ms. Skaggs violated Rule
11(b)(2) and grants the Village’s motion for sanctions.
(J.A. at 43.) The order also directed the parties to file briefs addressing the monetary amount that
the court should sanction Skaggs and the EJF.
Thereafter, Skaggs moved for reconsideration of the imposition of Rule 11 sanctions on the
ground that the district court improperly applied the pre-1993 version of Rule 11. Skaggs argued,
among other things, that the post-1993 version of Rule 11 did not allow the Court to impose
monetary sanctions. The Village’s motion in opposition was, for the most part, non-responsive.
On July 8, 2004, the district court held a hearing on the issue of sanctions. The Court
questioned Skaggs and her attorney, Kathleen Trafford, about Skaggs’ reasons for believing that a
viable First Amendment claim existed. Significantly, the district court raised the issue of standing
1
This opinion does not indorse the use of a letter in place of the requisite safe-harbor “motion” required by
Rule 11 or the Village’s incorporation of its motion for judgment on the pleadings into its safe-harbor letter. However,
because the parties have not briefed these issues, we decline to reach them.
No. 05-3051 Salkil v. Mt. Sterling Township Police Dep’t, et al. Page 6
for the first time. Skaggs and Trafford explained that at the time Skaggs filed the amended
complaint Skaggs believed that Salkil had standing because Skaggs understood the continuing
suspension of Salkil’s license to be a direct consequence of his refusal to sign the release-dismissal.
On August 23, 2003, the district court issued an opinion and order affirming its decision to
impose sanctions on Skaggs and the EJF under Rule 11. The district court reiterated its position
that Salkil’s First Amendment claim was not supported by existing law or a non-frivolous argument
for its extension. The district court again reasoned that existing case law only addresses the legality
of release-dismissal agreements actually executed, and in this case, no release-dismissal agreement
was ever executed. Thereafter, the district court went on to address an additional issue that,
according to the district court, Salkil raised for the first time in her memorandum in opposition to
sanctions: the pattern or practice nature of Salkil’s claim. Without addressing the viability of a
pattern or practice claim under the Petitions Clause, the district court reasoned that Salkil could not
make a pattern or practice claim because Salkil was not a victim of the Village’s alleged policy or
practice of demanding release-dismissal agreements. In other words, the district court seemingly
determined that Salkil lacked standing to raise a policy or practice claim because the Village did not
attempt to enforce the release-dismissal agreement against him or reinstate the charges. The district
court rejected Skaggs’ theory that Salkil was harmed by the continuing suspension on his license
by explaining that the continuing suspension did not appear to be a consequence of Salkil’s refusal
to sign the release-dismissal agreement but rather Hangsen’s failure to inform Salkil that the Village
had dismissed the charges against him. In conducting its standing analysis, the district court failed
to consider whether Skaggs’ belief that Salkil possessed standing was reasonable at the time Skaggs
was advancing the First Amendment claim on behalf of Salkil. In addition, the new order imposed
attorneys’ fees on Skaggs under 28 U.S.C. §1927. In contrast to the Rule 11 sanctions, the court
justified attorneys’ fees under § 1927 solely on Salkil’s lack of standing. Skaggs and the EJF now
appeal the imposition of sanctions under Rule 11 and attorneys’ fees under 28 U.S.C. § 1927.
II.
DISCUSSION
There are two issues before this Court today: whether the district court abused its discretion
in imposing sanctions on Skaggs and the EJF under Rule 11 and whether the district court abused
its discretion in imposing attorneys’ fees on Skaggs and the EJF under 28 U.S.C. § 1927. For the
reasons set forth below, we find that the district abused its discretion in both instances.
A. Standard of Review
It is well-established that this Court reviews a district court’s decision to impose sanctions
under Rule 11 or attorneys’ fees under § 1927 for abuse of discretion. Ridder v. City of Springfield,
109 F.3d 288, 293, 298 (6th Cir. 1997). A district court “necessarily abuse[s] its discretion if it
based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the
evidence.” Cooter & Gell v. Hartmarx Corp., U.S. 496 U.S. 384, 405 (1990).
B. Rule 11
The district court based its sanctions decision on two alternative grounds. First, the district
court held that Skaggs acted unreasonably because Salkil’s First Amendment claim was unwarranted
in light of existing case law. Second, the district court held that Skaggs acted unreasonably because
Salkil lacked standing to raise a claim based on the Village’s offer of a release-dismissal agreement.
Both grounds were impermissible bases for the district court’s decision and constitute an abuse of
discretion because: (1) the district court’s conclusion that Salkil’s First Amendment claim was
unwarranted in light of existing law was based on a clearly erroneous characterization of Salkil’s
No. 05-3051 Salkil v. Mt. Sterling Township Police Dep’t, et al. Page 7
First Amendment claim; and (2) the district court’s conclusion that Salkil lacked standing was made
with the benefit of hindsight.
1. Rule 11 requires attorneys to act “reasonably.”
Rule 11 prohibits attorneys from filing any “pleading, written motion, or other paper,” unless
“to the best of the [attorney]’s knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances . . . the claims, defenses, and other legal contentions therein
are warranted by existing law or by a nonfrivolous argument for the extension, modification, or
reversal of existing law or the establishment of new law.” Fed R. Civ. P. 11(b). Arguments for the
extension of existing law need not be identified as such. See Fed. R. Civ. P. 11 advisory
committee’s note (“Although arguments for change of law are not required to be specifically so
identified, a contention that is so identified should be viewed with greater tolerance under the rule.”)
In this Circuit, the test for whether Rule 11 sanctions are warranted is whether the conduct for which
sanctions are sought was “reasonable under the circumstances.” Ridder, 109 F.3d at 293.
2. The district court’s conclusion that Skaggs unreasonably advanced a friviolous
First Amendment claim on behalf of Salkil was based on a clearly erroneous
characterization of Salkil’s claim.
The district court very clearly misapprehended Salkil’s First Amendment claim. The district
court believed that Salkil was alleging the Village’s “mere offer” of a release-dismissal agreement
violated the First Amendment. In fact, Skaggs was advancing a dramatically different legal
argument on behalf of Salkil. Skaggs was arguing that the Village had a policy or practice of
requiring defendants to waive their legal claims where the Village had violated the defendants’
constitutional rights, and that this policy violated the First Amendment’s Petitions Clause. Skaggs’
position is evidenced in the complaint itself, in addition to her statements at the sanctions hearing.
The complaint reads:
Violation of 42 U.S.C. § 1983 Based on Freedom to Seek Redress From the
Government Guaranteed by the First Amendment
72. Mr. Salkil was offered a plea agreement.
73. In that agreement, Salkil would have had to release the Village from liability
for its role in the violation of Mr. Salkil’s constitutional right.
74. From belief, this type of agreement is common when the Village violates a
person’s constitutional rights.
75. This policy or custom of forcing defendants to release the Village
from liability in order to receive a plea agreement is arbitrary and
unreasonable.
(J.A. at 25-26.) Additionally, at the sanctions hearing, Salkil further explained that the Village did
not simply “offer” Salkil a release-dismissal agreement, but attempted to force it upon him. Despite
the clear language of Salkil’s complaint, and numerous other memoranda filed in this case, the
district court clearly failed to grasp Salkil’s claim. In its final sanctions opinion, the district court
noted:
At the hearing on this motion, Ms. Skaggs articulated a new justification for the
claims she asserted against the Village. She said that she believed the Village was
pursuing an unconstitutional policy of demanding a release in every plea agreement
. . . . This is the first time it has been suggested that this litigation was anything other
than a personal claim for damages by Mr. Salkil.
No. 05-3051 Salkil v. Mt. Sterling Township Police Dep’t, et al. Page 8
(J.A. at 52-53.) The above quoted language clearly demonstrates the district court’s failure to
accurately characterize Salkil’s First Amendment claim.
The difference between the district court’s misapprehension of Salkil’s First Amendment
claim and Salkil’s actual First Amendment claim was not insignificant; it affected the district court’s
assessment of the reasonableness of Skaggs’ conduct. The district court perhaps correctly concluded
that existing case law could not be extended to render mere offers of release-dismissal agreements
unconstitutional. This, however, was not Salkil’s claim. Salkil alleged that the Village maintained
a policy or practice of requiring release-dismissal agreements in all cases where the Village violated
a defendant’s constitutional rights. It is not unreasonable to suggest that a municipality’s policy or
practice of demanding release-dismissal agreements for the sole purpose of avoiding constitutional
responsibilities violates the First Amendment. Although both this Court and the Supreme Court
have approved the use of release-dismissal agreements, see Town Newton v. Rumery, 480 U.S. 386
(1987) and Coughlen v. Coots, 5 F.3d 970, 974 (6th Cir. 1993), both courts have also stated that the
validity of such agreements must be assessed on a case by case basis. A policy or practice of
demanding that such agreements be a part of every plea deal, necessarily precludes a case by case
treatment of such agreements. Furthermore, this Court has warned against enforcing release-
dismissal agreements where there is evidence of government misconduct. See Coughlen, 5 F.3d at
974 (“[S]hould a court conclude that a prosecutor secured a release-dismissal bargain in the face of
substantial evidence of police misconduct, the court could take this as evidence of prosecutorial
misconduct. . . . ”) Salkil’s 53 day tenure in prison while awaiting trial on a drunk-driving charge
could reasonably give rise to an inference of police misconduct and thereby prosecutorial
misconduct.
This is not to say that a municipality’s policy or practice of demanding release-dismissal
agreements violates the First Amendment. Little case law exists on this issue, and the case law that
does exist is not directly on point. Rumery and Coughlen address the enforceability of individual
release-dismissal agreements, not the validity of a policy requiring such agreements. See generally
Rumery, 480 U.S. at 386; Coughlen, 5 F.3d at 974. Additionally, Rumery and Coughlen are not
First Amendment cases, but cases based on “federal policy.” See generally Rumery, 480 U.S. at
386; Coughlen, 5 F.3d at 974.
Instead, we note only that it is unlikely that the district court would have concluded that
Salkil’s First Amendment claim was not warranted by a non-frivolous argument for the extension
of existing law if it had properly apprehended Salkil’s claim. Rumery and Coughlen, while not
directly on point, indicate that release-dismissal agreements are subject to court scrutiny.
Moreover, lest we not forget, the language of the First Amendment itself expressly precludes
depriving persons of the right to petition the government. U.S. Const. amend. I (“Congress shall
make no law . . . abridging . . .the right of the people . . . to petition the Government for a redress
of grievances.”). A municipality’s attempt to avoid liability for a constitutional wrong through the
blanket use of release-dismissal agreements arguably conflicts with this language. See Cal. Motor
Transp. Co. v. Trucking Unltd., 404 U.S. 508, 510 (1972); Bhd. of R.R. Trainmen v. Virginia, 377
U.S. 1, 7 (1964) (“The State . . . [cannot use] direct means to bar [plaintiffs] from resorting to the
courts to vindicate their legal rights. The right to petition the courts cannot be so handicapped.”)
Consequently, Skaggs’ interpretation of the First Amendment, while not necessarily correct, was
not unreasonable.
3. The district court’s conclusion that Salkil lacked standing was made with the
benefit of hindsight.
Perhaps realizing its error, the district court gave alternate grounds for imposing sanctions
in its final sanctions opinion. Concluding that Skaggs had failed to raise the policy or practice
claim, the district court nonetheless held that Salkil lacked standing to bring a policy or practice
No. 05-3051 Salkil v. Mt. Sterling Township Police Dep’t, et al. Page 9
claim. The district court reasoned that Salkil lacked standing because the Village’s alleged policy
or practice had not harmed Salkil. While the district court’s determination that Salkil lacked
standing was probably correct, it was not a proper basis for Rule 11 sanctions. A district court may
only impose Rule 11 sanctions for conduct unreasonable “under the circumstances.” The record in
this case, clearly indicates that “under the circumstances,” Skaggs’ failure to recognize Salkil’s lack
of standing was reasonable. In concluding otherwise, the district court improperly evaluated
Skaggs’ conduct with the wisdom of hindsight, thereby abusing its discretion.
As this Court has recognized on numerous occasions, assessing whether conduct is
“reasonable under the circumstances” requires the district court to analyze counsel’s conduct as it
appeared at the time counsel acted.
Although a district court is given wide discretion in deciding whether counsel have
acted reasonably under the circumstances, “[t]he court is expected to avoid using the
wisdom of hindsight and should test [counsel]’s conduct by inquiring what was
reasonable to believe at the time [counsel acted].”
INVST Fin. Group, Inc. v. Chem-Nuclear Sys., Inc., 815 F.2d 391, 401 (6th Cir. 1987) (quoting Fed.
R. Civ. P. 11 advisory committee’s note); see, e.g., In re Big Rapids Mall Assoc., 98 F.3d 926, 930
(1996). To avoid using hindsight in assessing counsel’s conduct, it is useful to look at whether other
parties to the litigation recognized counsel’s error at the time it was made. A mistake can hardly be
characterized as unreasonable, or below some objective standard, when the mistake is made by all
parties to the litigation.
In this case, the district court failed to address Skaggs’ conduct from the perspective of a
reasonable attorney at the time Skaggs acted, thereby abusing its discretion. Although the district
court’s legal analysis of standing was likely correct, the district court conducted the analysis without
inquiring into the reasonableness of Skaggs’ belief that Salkil possessed standing at the time she
advanced his claim. Rule 11 requires district courts to assess an attorney’s conduct from the
standpoint of a reasonable attorney at the time counsel committed the sanctionable conduct. Thus,
the district court abused its discretion in sanctioning Skaggs for Salkil’s lack of standing.
The record in this case indicates that, at the time she acted, Skaggs’ belief that Salkil
possessed standing was not unreasonable, particularly because neither the district court nor the
Village recognized that standing was an issue. Before filing the amended complaint, Skaggs
informed both the Village and the district court of the factual basis that ultimately led the district
court to conclude that Salkil lacked standing. Skaggs filed a statement of remaining claims that
expressly recounted Salkil’s steadfast refusal to enter into the release-dismissal agreement and the
Village’s decision not to reinstate the dismissed charges. Nonetheless, not only did the district first
raise standing during the sanctions hearing, the district court permitted Skaggs to file the amended
complaint after reading the statement of remaining claims. Cf. Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 94-95 (1998) (holding that federal courts have an independent obligation to
assess jurisdiction). Similarly, the Village failed to challenge the amended complaint based on
standing, despite having a financial incentive to do so. In fact, the Village maintained throughout
oral arguments that the proper basis for sanctions and attorneys’ fees was not standing but Skaggs’
position on the First Amendment. If both the district court and the Village failed to recognize the
standing issue, this Court can only conclude that at the time Salkil filed the amended complaint, the
standing issue was not an obvious one. Although we emphasize that Skaggs had a duty to assess
her client’s constitutional standing independent from that of the district court or the Village, we
cannot find that Skaggs’ failure to recognize the standing issue was unreasonable.
The dissent’s analysis suffers from the same flaw in reasoning as that of the district court.
The dissent analyzes facts which came forth at various points during the duration of the lawsuit as
No. 05-3051 Salkil v. Mt. Sterling Township Police Dep’t, et al. Page 10
if the facts were all available to Skaggs when she filed the amended complaint. Thus, instead of
focusing on whether Salkil’s conduct was reasonable “under the circumstances,” the dissent focuses
on whether Salkil ultimately had standing. This is simply not the proper inquiry.
Moreover, the dissent’s attempt to bolster its conclusion by citing two instances in which the
Village passingly referenced the term “harm” is misleading. Both references, practically
incomprehensible, are no more than two to three sentences buried in more extensive discussions of
First Amendment law, and in context simply appear as an extension of the Village’s argument that
Salkil’s claim was not grounded in existing First Amendment law inasmuch as existing case law
only deals with situations in which release-dismissal agreements were actually enforced. This point
in particular was made clear at oral arguments when the Village denied that standing was a basis for
sanctions. Only in hindsight do these opaque references seem to carry any standing-related
meaning.
To the extent these references can be interpreted as addressing the injury-in-fact component
of Article III standing, they are also unresponsive to Salkil’s theory of harm. The references state
that Salkil suffered no harm because the Village never attempted to enforce any release-dismissal
agreement. However, Salkil argued that the Village attempted to force him to sign the release-
dismissal agreement by essentially harassing him; he never contended that the Village attempted to
enforce the release-dismissal agreement against him. In other words, his theory of harm was never
that the Village harmed him by enforcing the agreement, but rather that they delayed the removal
of the suspension on his license. Accordingly, we are not persuaded that the Village ever recognized
the standing problem, let alone put Salkil on notice of the standing problem.
C. 28 U.S.C. § 1927
Similarly, we find that the district court abused its discretion in assessing attorneys’ fees
against Skaggs and the EJF. “Section 1927 provides that any attorney ‘who so multiplies the
proceedings in any case unreasonably and vexatiously may be required by the court to satisfy
personally the excess of costs, expenses, and attorneys’ fees reasonably incurred because of such
conduct.’” Ridder, 109 F.3d at 298 (quoting 28 U.S.C. § 1927). Section 1927 imposes an objective
standard of conduct on attorneys, and courts need not make a finding of subjective bad faith before
assessing monetary sanctions under § 1927. Id. (citing Jones v. Continental Corp., 789 F.2d 1225,
1230 (6th Cir. 1986)). Instead, a district court may impose sanctions under § 1927 when it
determines that “‘an attorney reasonably should know that a claim pursued is frivolous.’” Id.
(quoting Jones v. Continental Corp., 789 F.2d at 1230). Simple inadvertence or negligence,
however, will not support sanctions under §1927. Id. (quoting In re Reuben, 825 F.2d 977, 984 (6th
Cir. 1987)). “‘There must be some conduct on the part of the subject attorney that trial judges,
applying collective wisdom of their experience on the bench could agree falls short of the
obligations owed by a member of the bar to the court.’” Id. (quoting Reuben, 825 F.2d d at 984).
Moreover, “‘an award of attorneys’ fees against a losing plaintiff in a civil rights action is an
extreme sanction, and must be limited to truly egregious cases of misconduct.’” Id. at 299 (quoting
Jones, 789 F.2d at 1232) (applying in the context of a civil rights attorney).
In this case, the district court imposed attorneys’ fees under § 1927 for the same reason it
imposed Rule 11 sanctions: Salkil lacked standing to bring any First Amendment claim. As
explained in previous section, Skagg’s failure to recognize that Salkil lacked standing was not
unreasonable. Accordingly, it most certainly did not constitute egregious misconduct.
III.
CONCLUSION
For the reasons set forth above, we REVERSE the order of the district court.
No. 05-3051 Salkil v. Mt. Sterling Township Police Dep’t, et al. Page 11
________________
DISSENT
________________
RYAN, Circuit Judge, dissenting. Neither the appellants’ arguments nor the majority
opinion have convinced me that the district court abused its discretion in reprimanding Kimberly
M. Skaggs and the Equal Justice Foundation pursuant to Fed. R. Civ. P. 11, and sanctioning them
pursuant to 28 U.S.C. § 1927.
I. RULE 11
The district court reprimanded Skaggs for unreasonably pursuing a claim on Jeffrey Salkil’s
behalf that was 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,” in violation of Rule
11(b)(2). The claim, as Skaggs presented it, was that Salkil was harmed because his refusal to agree
to the liability waiver the Village of Mt. Sterling required meant that he was forced to stand trial in
order to have his driver’s license reinstated, whereas he would have been able to obtain the return
of his license immediately had the Village not conditioned his plea agreement on the waiver. The
court recognized that this argument lacked merit and a factual foundation because Salkil’s license
was not suspended because of the criminal charges brought by the Village; rather, it was suspended
because he refused to submit to an alcohol test when ordered to do so by the arresting officer. In
addition, the court noted, Salkil actually received a plea agreement that dismissed the charges and
contained the language necessary to restore his driver’s license immediately, without having to sign
the proposed liability waiver.
At the July 8, 2004, hearing on her motion for reconsideration of the order imposing
sanctions, Skaggs, perhaps recognizing a looming standing problem, offered a new justification for
the claims she was asserting on Salkil’s behalf. She stated that she was concerned not only about
Salkil, but about the “big picture”—the Village’s “unconstitutional policy of demanding a release
in every plea agreement.” The court explained:
This is the first time it has been suggested that this litigation was anything other than
a personal claim for damages by Mr. Salkil. Be that as it may, in order for his
lawsuit to curb an unconstitutional municipal policy or practice, Mr. Salkil would
have to show that he was a victim of the alleged policy or practice, which clearly he
was not.
Skaggs argues that the district court abused its discretion in issuing the Rule 11 reprimand
because Salkil’s “claim that the Village’s alleged demand for a waiver in every plea agreement [was
unconstitutional,] was a logical extension of existing case law,” and the court “hinged its decision
to award sanctions on Mr. Salkil’s [lack of] standing to bring the claim,” without allowing Skaggs
to brief the issue. Skaggs contends that, had the court “fully considered the issue of standing, it
would have realized that the Village’s alleged wrongful conduct resulted in the prolongation of the
administrative suspension of Mr. Salkil’s driving privileges in Ohio,” thus giving Salkil the requisite
standing.
Although Skaggs’s shifting and somewhat abstruse theory of the Village’s alleged liability
to Salkil is not easy to pin down, it seems to me, after reviewing the entire record, that Skaggs has
based Salkil’s claim on the following reasoning: The Village allegedly had a policy of conditioning
all plea agreement offers on a waiver of liability. Such a policy is unconstitutional because, in
Coughlen v. Coots, 5 F.3d 970 (6th Cir. 1993), this court held that liability waivers contained in plea
agreements are not per se enforceable, and their validity must be reviewed on a case-by-case basis.
No. 05-3051 Salkil v. Mt. Sterling Township Police Dep’t, et al. Page 12
Salkil was harmed by the policy, even though he received a plea agreement without signing a
liability waiver, because the Village did not offer him that agreement. Rather, he received his plea
agreement only as the result of his attorney’s error. Salkil was harmed by the Village’s alleged
policy, despite the fact that he received a plea agreement that dismissed the charges against him and
contained the language necessary to terminate the administrative suspension of his driver’s license,
because the suspension was not terminated, and, had his case proceeded to trial, the suspension may
have been terminated more quickly.
The district court disagreed and found that in advancing that claim, and in certifying that the
claim was warranted by existing law or a nonfrivolous argument for the extension of existing law,
Skaggs acted unreasonably. In my judgment, the district judge could not reasonably have come to
any other conclusion, but even if I am wrong about that, he certainly did not abuse his discretion.
Skaggs’s argument that Coughlen can be extended to render the Village’s alleged policy
unconstitutional is tenuous at best. But even if that argument were tenable, it is clear that Salkil’s
alleged injury is not fairly traceable to the Village’s alleged policy. Finally, even with the benefit
of briefing, Skaggs has come up with no more than a claim that Salkil suffered a speculative or
conjectural, rather than an actual, injury. Her argument that Salkil was injured because his driver’s
license may have been restored more quickly had he not been offered the plea agreement, and
instead, stood trial, is manifestly meritless.
The plea agreement Salkil’s attorney filed contained the language necessary to terminate the
administrative suspension of Salkil’s driver’s license. The only reason the suspension was not
terminated is that Salkil did not complete and file the proper administrative form. The Village had
no responsibility to ensure that Salkil followed the proper procedure for the reinstatement of his
driving privileges. That responsibility lay with Salkil and his attorney. Any failure to restore
Salkil’s license upon the filing of the plea agreement was caused by Salkil’s and his attorney’s
failure to communicate and ensure that the necessary steps were taken to terminate the suspension
and restore the license.
Even if the failure to restore Salkil’s license upon the filing of the plea agreement were not
attributable to Salkil and his attorney, there is no basis for Skaggs’s claim that the Village did
anything to prolong the suspension of Salkil’s license. Skaggs argues that Salkil waited a year for
the administrative suspension to expire, and, had he never been offered the plea agreement, his case
“would have proceeded in [a] direction that in all likelihood would have terminated the
administrative suspension earlier than its one-year statutory termination.” That, of course, is pure
speculation, and moreover, it is based on an erroneous assumption.
Under Ohio law, the administrative suspension of Salkil’s license for refusal to submit to an
alcohol test would have terminated upon a judgment or plea of guilty on the OMVI charge, but it
would have been replaced by a mandatory suspension of at least six months but not more than three
years, with credit given for the period of the original suspension. See Ohio Rev. Code Ann.
§§ 4511.191(E)(2), (K) (May 17, 2000); 4507.16(B)(1) (March 23, 2000). Thus, there is only a
chance that Salkil’s license would have been restored more quickly had he waited for trial.
II. STANDING
To satisfy the constitutional requirements for standing, a claimant must have suffered an
injury in fact that is fairly traceable to the challenged conduct of the defendant. Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992). An injury in fact is “an invasion of a legally protected interest
which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.”
Id. (internal quotation marks and citations omitted). Salkil clearly did not have standing to bring
his claim against the Village because he could allege only a “conjectural” injury that was not fairly
traceable to the Village’s alleged unconstitutional conduct.
No. 05-3051 Salkil v. Mt. Sterling Township Police Dep’t, et al. Page 13
I respectfully disagree with my colleagues that the fact that neither the district court nor the
Village addressed Salkil’s lack of standing during the merits stage of the proceedings indicates
anything about whether Skaggs’s belief that Salkil had standing to bring the claim was reasonable
or unreasonable. The court’s “delay,” as my colleagues put it, in raising Salkil’s clear lack of
standing resulted from the fact that, prior to the sanctions stage of the proceedings, Skaggs had not
clearly articulated the basis for Salkil’s claim or alleged how Salkil was injured by the Village’s
alleged unconstitutional policy. Although Skaggs alleged from the beginning that the Village had
an “arbitrary and unreasonable” policy of conditioning all plea agreements on liability waivers, she
did not explain how the policy was unconstitutional under existing law or a reasonable extension
of existing law until she responded to the Village’s motion for sanctions. And she had not, until
then, offered any explanation as to how Salkil was harmed by the policy. In fact, the explanation
ultimately given was not fully developed until Skaggs appealed to this court.
Although neither the court nor the Village explicitly referenced the doctrine of “standing”
during the merits stage of the proceedings, both addressed the substance of the constitutional
requirements for standing in observing that Salkil failed to allege how the Village’s conduct caused
him harm. Before Salkil even filed the claim, the Village argued that he failed to allege in his
statement of remaining claims that the district court required, how the offer of the plea agreement
with a liability waiver harmed him when he refused to sign the waiver and the charges brought
against him were still dismissed. Later, the Village argued, in its reply to Salkil’s response to the
motion for judgment on the pleadings, that Salkil “fail[ed] to present any evidence to allege that the
revoked plea agreement caused [him] any harm.” It also argued, and the district court agreed, that
Salkil failed to show how the Village deprived him of his First Amendment right to petition the
government when the Village offered him a plea agreement with a liability waiver but permitted him
to receive the plea agreement without signing the waiver.
It is clear to me that the district court did not make a “clear error of judgment” in
determining: 1) that Salkil’s claim was a frivolous argument for the extension of existing law; and
2) that Skaggs acted unreasonably in filing and pursuing the claim because she had all the facts
necessary to determine it was frivolous from the outset. The court did not abuse its discretion in
reprimanding Skaggs and the Equal Justice Foundation pursuant to Rule 11.
III. 28 U.S.C. § 1927
Although care must be taken in assessing attorney fees under 28 U.S.C. § 1927, to assure that
attorneys are not deterred from their ethical obligation of zealous advocacy on behalf of their clients,
In re Ruben, 825 F.2d 977, 983 (6th Cir. 1987), an attorney’s ethical obligation “does not amount
to carte blanche to burden the federal courts by pursuing claims that are frivolous on the merits, or
by pursuing nonfrivolous claims through the use of multiplicative litigation tactics that are harassing,
dilatory, or otherwise ‘unreasonable and vexatious.’” Jones v. Continental Corp., 789 F.2d 1225,
1230 (6th Cir. 1986).
The district court assessed attorney fees under § 1927 on the ground that “Skaggs reasonably
knew or should have known that the claim asserted against the Village was frivolous when she filed
the amended complaint.” As I have explained, I do not think the court abused its discretion in
determining that Skaggs reasonably should have known that Salkil’s claim against the Village was
frivolous from the outset. Skaggs chose to include the claim in the amended complaint after the
Village placed her on notice that the statement of the claims against the Village failed to identify a
constitutional right violated or an injury suffered as a result of the Village’s alleged conduct. She
then continued to pursue the claim without clearly explaining the basis for it, even after receiving
the Village’s “safe harbor letter,” and she never argued for an extension of existing law in support
of Salkil’s claim.
No. 05-3051 Salkil v. Mt. Sterling Township Police Dep’t, et al. Page 14
Skaggs argues that a district court may not assess attorney fees pursuant to 28 U.S.C. § 1927
“when the only finding is that the attorney advanced an unmeritorious or even frivolous claim.” I
disagree. Although this court has explained that “[a]n award of attorney’s fees against a losing
plaintiff in a civil rights action is an extreme sanction, and must be limited to truly egregious cases
of misconduct,” Jones, 789 F.2d at 1232, we have also explained, in the context of affirming an
award of § 1927 attorney fees, that “a civil rights plaintiff does not have free rein to bring and pursue
frivolous claims,” Ridder v. City of Springfield, 109 F.3d 288, 299 (6th Cir. 1997).
Contrary to Skaggs’s assertions, our precedent is not that a court is precluded from awarding
attorney fees for the pursuit of a frivolous civil rights claim unless that pursuit is accompanied by
other unreasonable and vexatious conduct. Rather, we have emphasized that the court should not
conduct post hoc reasoning to conclude that a claim was frivolous merely because the plaintiff did
not ultimately prevail. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22 (1978).
A court should be especially cautious about conducting such post hoc reasoning in civil rights cases
because “[i]t is a function of the intrinsic nature of civil rights actions that on occasion plaintiffs may
not possess full evidentiary support at the onset.” Ridder, 109 F.3d at 299.
As I have explained, the district court did not engage in post hoc reasoning to conclude that
Salkil’s claim was frivolous. Rather, it found that Salkil’s claim was frivolous, even if he could
prove every fact alleged in his complaint, because it was based on a frivolous argument for the
extension of existing law. The court also found that Skaggs had all the facts necessary to determine
that Salkil’s claim was frivolous prior to filing the amended complaint. Skaggs not only pursued
the claim, but she failed to clarify the basis for it, even after receiving the Village’s “safe harbor
letter.”
I do not think the district court based its decision to assess attorney fees under § 1927 on an
erroneous view of the law or a clearly erroneous assessment of the facts, nor am I firmly convinced
the court made a clear error of judgment in concluding that Salkil’s claim against the Village was
frivolous from the outset, and that Skaggs multiplied unreasonably the proceedings in Salkil’s case
by including it in the amended complaint. Therefore, I conclude that the district court did not abuse
its discretion in awarding the Village attorney fees pursuant to 28 U.S.C. § 1927.
IV. CONCLUSION
As I see no abuse of discretion in the district court’s decision to issue a reprimand pursuant
to Fed. R. Civ. P. 11 and award attorney fees pursuant to 28 U.S.C. § 1927, I would affirm the
district court’s judgment.
Salkil v. Mt. Sterling
Combined Opinion