Jeffrey Alan Salkil, Kimberly M. Skaggs Equal Justice Foundation v. Mount Sterling Township Police Department, Village of Mt. Sterling

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 SaUdl’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 *533refusal 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. 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 *534unreasonably. 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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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.

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 *535reasonable 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 *536identify 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.

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, 98 S.Ct. 694, 54 L.Ed.2d 648 (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.