[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15236 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 23, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 4:10-cv-00038-CDL
JOSHUA ALFORD,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
CONSOLIDATED GOVERNMENT OF COLUMBUS, GEORGIA,
a Municipal Corporation of the State of Georgia,
JIM WETHERINGTON,
Mayor, et al.,
llllllllllllllllllllllllllllllllllllllll Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(August 23, 2011)
Before BARKETT, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
Joshua Alford, through counsel, appeals the district court’s dismissal for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), of his civil
rights Complaint, alleging violations of his constitutional rights to procedural due
process, substantive due process, and equal protection. In his Complaint, Alford
contended his constitutional rights were violated when his employment with the
Consolidated Government of Columbus, Georgia, was terminated for allegedly
viewing pornographic and obscene materials at work, while other municipal
employees were not disciplined for similar conduct. Alford asserts several issues
on appeal, which we address in turn. The Appellees have moved for sanctions
against Alford and his attorney for pursuing a frivolous appeal. After review,1 we
affirm the district court.
I.
Alford initially contends the district court erred in failing to properly review
his claim for a violation of procedural due process. Specifically, he asserts the
court’s procedural due process analysis only addressed the number of members of
the Columbus Personnel Review Board present at his post-termination hearing,
1
We review de novo the grant of a motion to dismiss under Rule 12(b)(6) for failure to
state a claim, accepting the factual allegations in the complaint as true and construing them in the
light most favorable to the non-moving party. Edwards v. Prime, Inc., 602 F.3d 1276, 1291
(11th Cir. 2010).
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and not the additional allegations or issues identified in his counseled Complaint
under the rubric of his substantive due process claim. Relying on our decision in
McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994), Alford maintains the district
court was obliged to review all allegations of due process issues, including those
made in connection with his substantive due process claim.
Pursuant to Federal Rule of Civil Procedure 8(a)(2), a complaint must
contain “a short and plain statement of the claim showing that the pleader is
entitled to relief, in order to give the defendant fair notice of what the claim is and
the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quotations and ellipses omitted). Although a complaint attacked under
Rule 12(b)(6) does not need detailed factual allegations, a plaintiff’s obligation to
provide the grounds of his entitlement to relief requires sufficient allegations to
raise a right to relief above the speculative level. Id. (quotations and alterations
omitted).
Federal courts generally abide by the “principle of party presentation,”
relying “on the parties to frame the issues for decision and assign to courts the role
of neutral arbiter of matters the parties present.” Greenlaw v. United States, 554
U.S. 237, 243 (2008). As the Supreme Court has emphasized, “our adversary
system is designed around the premise that the parties know what is best for them,
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and are responsible for advancing the facts and arguments entitling them to relief.”
Id. To the extent that courts have varied from this general principle, they usually
have done so in order to protect the rights of pro se litigants. Id. at 244-45. Even
so, while pro se pleadings are liberally construed, “this leniency does not give a
court license to serve as de facto counsel for a party or to rewrite an otherwise
deficient pleading in order to sustain an action.” GJR Investments, Inc. v. Cnty. of
Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (internal citation omitted),
overruled on other grounds as recognized in Randall v. Scott, 610 F.3d 701, 706
(11th Cir. 2010). This principle is particularly true where a party is represented by
counsel, who does not enjoy the leniency afforded pro se litigants. See id.
Pursuant to Rule 8(a)(2), as well as the general principle of party
representation, Alford and his attorney were obligated to set forth the specific
grounds supporting the procedural due process claim in order to give the
defendants fair notice of the nature of that claim. To the extent that Alford
intended to raise a procedural due process claim that transcended the adequacy of
the number of Board members present at his post-termination hearing, his
Complaint failed to indicate or provide fair notice of this fact. Moreover,
particularly as Alford was represented by counsel, the district court was not
required to liberally construe the procedural due process claim raised in his
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Complaint to encompass those allegations raised solely in connection with his
distinct substantive due process claim. Contrary to Alford’s suggestion, our
decision in McKinney v. Pate does not dictate a different conclusion or absolve
him and his attorney of an obligation to set forth the specific grounds upon which
the procedural due process claim rested. Accordingly, the district court did not err
in limiting its consideration of the procedural due process claim to the specific
grounds raised in Alford’s counseled Complaint.
II.
Alford next asserts the district court erroneously concluded the Supreme
Court’s decision in Engquist v. Oregon Department of Agriculture, 553 U.S. 591
(2008), precluded his equal protection claim. Specifically, he maintains
Engquist’s prohibition against class-of-one equal protection claims in the public
employment context is limited to at-will employees, and does not extend to merit
system or civil service employees.
The Equal Protection Clause of the Fourteenth Amendment generally
requires government entities to treat similarly situated individuals alike. Campbell
v. Rainbow City, Ala., 434 F.3d 1306, 1313 (11th Cir. 2006). In a traditional
employment case brought under the Equal Protection Clause, an employee asserts
that he was discriminated against on account of his membership in an identifiable
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or protected class, such as race, religion, sex, or national origin. See Engquist, 553
U.S. at 594-95; Sweet v. Sec’y, Dep’t of Corr., 467 F.3d 1311, 1318-1319 (11th
Cir. 2006) (noting a plaintiff typically must allege that he was treated differently
“based on race, religion, national origin, or some other constitutionally protected
basis” to establish an equal protection claim). In a “class of one” equal protection
claim, however, a plaintiff does not allege discrimination against a protected class
or on account of membership in a particular group, but rather, asserts that he has
been treated differently from others similarly situated for arbitrary or irrational
reasons. See Engquist, 553 U.S. at 595-97; Leib v. Hillsborough Cnty. Pub.
Transp. Comm’n, 558 F.3d 1301, 1306 (11th Cir. 2009).
In Engquist, a state employee alleged she had been effectively laid off for
“arbitrary, vindictive, and malicious reasons.” 553 U.S. at 594-95. Without
qualification or expressed limitation, the Supreme Court broadly held “such a
‘class-of-one’ theory of equal protection has no place in the public employment
context.” Id. at 594. The Court concluded that, while “the Equal Protection
Clause is implicated when the government makes class-based decisions in the
employment context, treating distinct groups of individuals categorically
differently,” it has no application when “government employers are alleged to
have made an individualized, subjective personnel decision in a seemingly
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arbitrary or irrational manner.” Id. at 605. Although the Supreme Court stated a
class-of-one theory of equal protection is contrary to the concept of at-will
employment, the Supreme Court further reasoned “a government’s decision to
limit the ability of public employers to fire at will is an act of legislative grace, not
constitutional mandate.” Id. at 606-07.
Alford’s attempt to limit Engquist to at-will public employees is not
supported by the Supreme Court’s decision. Engquist holds that class-of-one
equal protection claims are categorically prohibited in the public employment
context, regardless of whether the aggrieved employee is an at-will employee or
subject to statutory protection from wrongful discharge. Moreover, the district
court correctly construed Alford’s equal protection claim as resting on a class-of-
one theory. Although Alford insisted that he was a member of the class of merit
system employees, he did not suggest that he was treated differently on account of
his membership in this particular group, or allege that similarly situated employees
outside the class of merit system employees were treated more favorably. To the
contrary, his contention was that he was arbitrarily treated differently than other
municipal employees. Accordingly, the district court properly concluded that
Alford’s class-of-one equal protection claim was foreclosed under Engquist.
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III.
The Appellees seek sanctions against Alford and his counsel, in the form of
attorneys’ fees, pursuant to 28 U.S.C. § 1927.2 They maintain that opposing
counsel, Ron Iddins, has knowingly and recklessly pursued frivolous claims on
appeal that unreasonably multiplied the proceedings.
Pursuant to § 1927, federal courts, including courts of appeals, may require
any attorney “who so multiplies the proceedings in any case unreasonably and
vexatiously . . . to satisfy personally the excess costs, expenses, and attorneys’ fees
reasonably incurred because of such conduct.” 28 U.S.C. § 1927; see also
Reynolds v. Roberts, 207 F.3d 1288, 1302 (11th Cir. 2000) (concluding courts of
appeals have authority to award fees and costs under § 1927). To justify an award
of sanctions under § 1927, “an attorney must engage in unreasonable and
vexatious conduct; this conduct must multiply the proceedings; and the amount of
the sanction cannot exceed the costs occasioned by the objectionable conduct.”
Peer v. Lewis, 606 F.3d 1306, 1314 (11th Cir. 2010) (quotations omitted). “An
2
The Appellees also seek sanctions under Federal Rule of Appellate Procedure 38, and
have filed a corresponding motion for authorization to file an out-of-time request for Rule 38
sanctions. By separate order, we deny the appellees’ motion to seek Rule 38 sanctions out of
time, as they have failed to demonstrate a sufficient basis for excusing their failure to comply
with the applicable deadline. See 11th Cir. R. 38-1 (“Motions for damages and costs pursuant to
FRAP 38 must be filed no later than the filing of appellee’s brief.”). We also deny their motion
for sanctions to the extent that it relies on Rule 38 as untimely.
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attorney multiplies the proceedings unreasonably and vexatiously only when the
attorney’s conduct is so egregious that it is tantamount to bad faith.” Id.
(quotations omitted). The standard is an objective one, turning on how a
reasonable attorney would have acted under the circumstances rather than on the
particular attorney’s subjective intent. Norelus v. Denny’s Inc., 628 F.3d 1270,
1282 (11th Cir. 2010). A bad faith determination is warranted where an attorney
knowingly or recklessly pursues a frivolous claim. Amlong & Amlong, P.A. v.
Denny’s Inc., 500 F.3d 1230, 1242 (11th Cir. 2007). Something more than a lack
of merit or negligent conduct is needed to support the imposition of sanctions
under § 1927. Id.
As previously stated, counsel’s contentions on appeal are wholly
unsupported by existing law. The challenge to the district court’s construction of
Alford’s procedural due process claim plainly conflicts with both the requirements
of Rule 8(a)(2) and the general principle of party presentation upon which our
adversary system is based, effectively seeking to absolve counsel of his own
shortcomings in drafting Alford’s Complaint. Moreover, counsel’s attempt to
limit the holding of Engquist is at least equally frivolous, unsupported by the
decision itself and other caselaw. Despite being previously admonished and
sanctioned by the district court for ignoring the clear holding of Engquist, counsel
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has insisted on pursuing an identical claim on appeal. Under the circumstances,
counsel has multiplied the proceedings by pursuing frivolous claims in an
objectively reckless manner. We therefore grant the Appellees’ motion for
sanctions to the extent that it relies on § 1927, and remand this case to the district
court for the limited purpose of determining the amount of attorneys’ fees
reasonably incurred by the appellees in litigating this appeal and to assess that
amount solely against the appellant’s attorney.
IV.
For the foregoing reasons, we AFFIRM the district court’s dismissal under
Rule 12(b)(6), AWARD SANCTIONS to the appellees pursuant to § 1927, and
REMAND the case to the district court to determine and assess a reasonable
amount of attorneys’ fees for the defense of this appeal.
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