Federal Court Sanctions Against Attorneys Under 28 U.S.C. §1927 — The 11th Circuit Court of Appeals Attempts to Divide the Standard for Multiplying the Proceedings in Bad Faith
It is becoming increasingly common for a prevailing party in federal court to seek attorneys’ fees from the losing party’s attorney under a combination of Federal Rule of Civil Procedure 11, 28 U.S.C. §1927, and the court’s companion “inherent powers.” Unlike Rule 11, though, “awards pursuant to §1927 may be imposed only against the offending attorney; clients may not be saddled with such awards.”1 Rule 11 sanctions are tied to a signed filing, while §1927 examines the attorney’s course of conduct throughout the entire litigation.2 Therefore, serious misconduct not necessarily involving the signing of a pleading, memorandum or motion can qualify for punishment of the attorney. Rule 11 also provides the allegedly erring attorney the “safe harbor” of a 21-day notification,3 while §1927 does not. Section 1927 misconduct is cumulative in nature, while Rule 11 misconduct is not. Inasmuch as a §1927 sanctions motion may come without warning and may involve monetary sanctions much more substantial than those associated with a Rule 11 motion, this article focuses on the current legal standards applicable to §1927 misconduct.
Not all questionable conduct, however, is sanctionable under §1927. In the 11th Circuit, it is well settled that “this section is not a ‘catch-all’ provision for sanctioning objectionable conduct by counsel.”4 Section 1927 requires the touchstone of bad faith, which is more than mere negligence or lack of merit. The 11th Circuit has held that an attorney who “knowingly or recklessly pursues a frivolous claim” acts in bad faith.5 For sanctions to be appropriate, counsel must have engaged in unreasonable and vexatious conduct; this conduct must have multiplied the proceedings, and the amount of the sanction cannot exceed the costs resulting from the conduct.6 Sanctions are not warranted simply because counsel’s general performance or particular decision making did not rise to the highest standards of the profession.7
Historically, the 11th Circuit has observed that the authority to level sanctions under §1927 is either broader than, or equally as broad as, the authority to level sanctions under a district court’s inherent powers.8 As such, most federal decisions (and this article) focus on the standards applicable to the award of §1927 sanctions because, if the sanctions are appropriate under §1927, then they are also awardable under the court’s inherent powers.
Section 1927 provides:
[a]ny attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.
In Cordoba v. Dillard’s, Inc., 419 F.3d 419 F.3d 1169, 1178-79 (11th Cir. 2005), the 11th Circuit discussed its confusing precedent on the issue of whether §1927 sanctions required a threshold finding of actual, subjective bad faith on the part of the offending attorney. On this unclarified point, the court held: “ Our cases are perhaps somewhat unclear on this point : either they require subjective bad faith, which may be [objectively] inferred from reckless conduct, or they merely require reckless conduct, which is considered ‘tantamount to bad faith.’” (Emphasis added.)
Almost one year following the decision in Cordoba, the 11th Circuit was presented with the opportunity, in a unique case, to resolve the admittedly unclear precedent.
The Amlong Majority Opinion
This self-described lack of clarity in Cordoba was the subject of great focus, albeit with internally mixed results, in the 11th Circuit’s July 31, 2006, 100-page split decision opinion (45-page majority opinion; 52-page dissenting opinion, plus a three-page appendix) in Amlong & Amlong, P.A. v. Denny’s, Inc., 457 F.3d 1180 (11th Cir. 2006). In Amlong, Ft. Lauderdale attorneys Karen Coolman Amlong, William R. Amlong, and their law firm, Amlong & Amlong, P.A., appealed from a Southern District of Florida court order (Lenard, J.) imposing substantial monetary sanctions against them (in excess of $400,000), jointly and severally,9 under §1927 for their conduct in representing Floride Norelus, a Haitian immigrant, in a Title VII sexual harassment lawsuit.10
The initial complaint was filed on behalf of Ms. Norelus in December 1994. According to her second amended complaint, Ms. Norelus, a former Denny’s employee, alleged, inter alia, that she suffered a horrific pattern of sexual harassment, rape, and assault by two men who were managers of separate Denny’s restaurants, such attacks occurring in the restaurants and in the homes of the men. After reporting the abuse to Denny’s authorities, Ms. Norelus claimed that they failed to take proper remedial steps. Indeed, Ms. Norelus claimed that one of the managers retaliated against her by reducing her work hours and changing her work schedule. During the course of discovery, Ms. Norelus was deposed twice. Her first deposition spanned eight days in January and February 1996 and produced voluminous transcripts of more than 1,200 pages. Following Ms. Norelus’ first deposition, and the depositions of 10 employees of Denny’s, the Amlong attorneys engaged a polygraph examiner who conducted examinations of Ms. Norelus in January and April 1996. Thereafter, Ms. Norelus, with the assistance of the Amlong attorneys, produced a deposition errata sheet consisting of 63 pages and a total of 868 changes. The receipt of the errata sheet prompted the defendants to ask the district court to dismiss the case because the changes demonstrated Ms. Norelus’ pervasive lies while under oath. On August 26, 1996, the district court denied that motion, but required, in part, that the deposition be reopened and that Ms. Norelus pay the cost of the second deposition. Ms. Norelus’ second deposition spanned another three days in September 1996. Following that, on October 16, 1996, at the defendants’ request, the district court entered another order requiring the costs of the second deposition to be paid jointly by Ms. Norelus and the Amlong attorneys. Based upon the failure to pay such costs and to otherwise comply with the district court’s August 26, 1996, order, the district court dismissed the action as a sanction. Ms. Norelus took an appeal from the order of dismissal, but the 11th Circuit dismissed the appeal for failure to prosecute on May 12, 1998. In January 1997, after dismissal of the underlying suit but before the dismissal of the appeal therefrom, four of the defendants sought sanctions against Ms. Norelus and the Amlong attorneys, which the district court referred to the magistrate judge to conduct an evidentiary hearing. On February 5, 1998, the magistrate judge issued a report and recommendation that the district court assess attorneys’ fees against Ms. Norelus under 42 U.S.C. §2000e-5(k), but recommending that no sanctions be imposed on the Amlong attorneys. On this latter recommendation, the magistrate judge concluded that the Amlongs’ conduct did not amount to bad faith justifying sanctions under 28 U.S.C. §1927. The moving defendants objected to the report and recommendation and, on March 21, 2000, the district court sustained the objections based upon the review of the hearing transcript before the magistrate judge, but without a new evidentiary hearing. The district court assessed sanctions against the Amlong attorneys through four sources of judicial authority: 42 U.S.C. §2000e-5(k); 28 U.S.C. §1927; Fed. R. Civ. P. 26(g); and the court’s inherent powers.11
The 11th Circuit has consistently held that §1927 allows a district court to assess attorneys’ fees against counsel and law firms12 who abuse the judicial process by conduct so egregious that it is “tantamount to bad faith.”13 In Amlong, the Amlong attorneys argued “bad faith” in the context of §1927 necessarily meant subjective bad faith — “that is, deliberate wrongdoing, such as proceeding with claims the attorney knows for a fact are false or frivolous.”14 In rejecting the subjective standard approach, the 11th Circuit concluded:
[I]t is clear from the statutory language and the case law that for purposes of § 1927, bad faith turns not on the attorney’s subjective intent, but on the attorney’s objective conduct. The term “unreasonably” necessarily connotes that the district court must compare the attorney’s conduct against the conduct of a “reasonable” attorney and make a judgment about whether the conduct was acceptable according to some objective standard. The term ‘vexatiously’ similarly requires an evaluation of the attorney’s objective conduct.”15
Then, clarifying the objective standard determined to be applicable to the imposition of §1927 sanctions, the majority wrote:
The terminology and explanation that we have employed in the past is wholly consistent with the idea that sanctions under §1927 are measured against objective standards of conduct. In Schwartz v. Millon Air, Inc., we stated that the sanctions are permissible “where an attorney knowingly or recklessly pursues a frivolous claim.” 341 F.3d 1225 (emphasis added). Thus, objectively reckless conduct is enough to warrant sanctions even if the attorney does not act knowingly and malevolently. In Malautea v. Suzuki Motor Co., 987 F.2d 1536 (11th Cir. 1993), we found that an attorney’s conduct was “tantamount to bad faith” when he “either carelessly or deliberately” covered up evidence. Id. at 1544.16
The Amlong Dissenting Opinion
Notwithstanding that clarification, Senior Judge Hill, in dissent, took umbrage with the majority’s so-called adoption of the objective standard. In this regard, Judge Hill sharply criticized the majority for obscuring the objective analysis with the required consideration of the subjective intentions underpinning the attorney’s behavior:
After having so carefully established that the appropriate test for [§]1927 sanctions in this circuit is objective, not subjective, with citation to no less than [14] cases, the majority then proceeds to advance the proposition — without citation to a single authority — that under the objective test:“[A] district court may impose sanctions for egregious conduct by an attorney even if the attorney acted without the specific purpose or intent to multiply the proceedings. That is not to say the attorney’s purpose or intent is irrelevant. Although the attorney’s objective conduct is the focus of the analysis, the attorney’s subjective state of mind is frequently an important piece of the calculus, because a given act is more likely to fall outside the bounds of acceptable conduct and therefore be ‘unreasonabl[e] and vexatious’ if it is done with a malicious purpose or intent.” (Emphasis added.)
Quite clearly, this is not an accurate description of the objective test. Under the objective test for bad faith, counsel’s subjective intentions are never “frequently an important piece of the calculus” in evaluating counsel’s objective conduct.17
Judge Hill rang the proverbial “warning bell” claiming that, from an institutional point of view, the majority’s “holding today will revise the binding law of this circuit to substitute a subjective test for the objective one that we now apply in deciding whether counsel’s conduct may be sanctioned under §1927. This substitution will eviscerate the ability of our district courts to sanction exactly the sort of conduct that the district court in this case found to be a reckless abuse of the judicial process.”18 Obviously, Judge Hill’s concern is that consideration of the attorney’s subjective state of mind necessarily thwarts the district court’s ability to swiftly and objectively sanction a wayward lawyer — a tool sometimes necessary to manage the case.19
In counterpoint, the majority acknowledged Judge Hill’s contrary views and suggested:
The dissent erroneously reads our holding as being that an attorney’s “subjective good intentions may relieve her from liability for sanctions” for objectively pursuing a frivolous claim. In fact, we have reached no such conclusion. Our holding, again, is simply this: the district court abused its discretion and clearly erred when it squarely rejected the magistrate judge’s findings of fact and credibility determinations and substituted its own, without hearing so much as a single witness at a sanctions hearing.20
Judge Hill disagreed with the majority’s contention that he misread its holding and stated:
Counsel’s bad intentions in a particular case, if proved, may become a factor in the district court’s ultimate decision to sanction …. This is not, as the majority asserts, because those subjective intentions are somehow relevant to our evaluation of her objective conduct. On the contrary, counsel’s bad intentions remain irrelevant to that evaluation. The district court must first determine whether counsel’s conduct was objectively reckless. Having so found, the district court had the discretion to sanction that conduct or not. Clearly, the presence of actual bad faith in a case might tip the balance in favor of sanctions.21
Analysis and Conclusion
It is rather ironic that the experienced panel in Amlong, each member of which served as a district court judge before appointment to the 11th Circuit, would hand down an opinion of 100 pages reflecting its own divisiveness on the topic of multiplication of proceedings. The lengthy back-and-forth opinion in which the majority (Hull and Marcus, JJ.) and dissenting (Hill, Sr. J.) judges take frequent, alternating swipes at one another, attempted to announce that the 11th Circuit had now adopted a clear objective standard applicable to the imposition of sanctions against attorneys under §1927. What remains unclear, unfortunately, is the extent to which this new standard subsumes consideration of the subjective intentions of an attorney who unreasonably and vexatiously multiplies the proceedings. Under the majority’s approach, an undesirable multiplication of sanctions hearings is sure to follow where, as here, the district court imposes §1927 sanctions after rejecting the magistrate judge’s findings of fact and credibility determinations without a subsequent evidentiary hearing.
Litigation over attorneys’ fees in the form of sanctions is an undeniable, ever-burgeoning area of federal practice and demands unambiguous standards to avoid protracted proceedings. That reality opposes the fundamental precept that “[a] request for attorneys’ fees should not result in a second major litigation.”22 What we have in Amlong, however, is failure to communicate a standard that curtails, rather than augments, §1927 fees litigation. That standard, Judge Hill points out, is fundamentally flawed because “[t]he majority offers not one case in which testimony about counsel’s subjective good intentions was held to be even relevant to, much less determinative of, the objective recklessness of counsel’s conduct. I suggest there is not one.”23
More than 11 years after Ms. Norelus’ initial complaint was filed in the district court, and nine and one-half years after the district court case was dismissed, the majority remanded the §1927 matters for further evidentiary hearings. The majority sent the case back to the lower court for credibility findings, a disposition that Judge Hill repeatedly criticized: “Despite [10] years of litigation on the sole issue of sanctions, and the enormous amount of judicial resources that the judges of the Southern District of Florida have already invested in deciding this issue, the majority today announces that the job is not done.”24 Lamenting the obfuscation of the objective analytical standard, Judge Hill noted that the majority returned “[t]his interminable litigation…to the district court for further proceedings” with the instruction that it “must hold yet another hearing to determine the counsel’s sincerity in the conduct of this case.”25 In the end — if there ever is to be one in this case — it appears that the more-than-likely reappearance of the Amlong parties in the 11th Circuit will afford the court, perhaps with en banc consideration, a final opportunity to mark an objective bright line upon §1927 misconduct.26
1 Byrne v. Nezhat, 261 F.3d 1075, 1106 (11th Cir. 2001) (internal quotations omitted).
2 U.S. v. Int’l Bhd. of Teamsters, 948 F.2d 1338, 1345 (2d Cir. 1991) (“its terms, §1927 looks to unreasonable and vexatious multiplications of proceedings; and it imposes an obligation on attorneys throughout the entire litigation to avoid dilatory tactics.”).
3 Fed. R. Civ. P. 11(c)(1)(A). Rule 11’s safe harbor provision disallows such motions as untimely when filed after a point in the litigation when the [party] sought to be sanctioned lacked an opportunity to correct or withdraw the challenged submission. In Re Pennie & Edmonds L.L.P., 323 F.3d 86, 89 (2d Cir. 2003).
4 Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225 (11th Cir. 2003).
5 Id. at 1225-26.
6 McMahan v. Toto, 256 F.3d 1120, 1128 (11th Cir. 2001), amended, on other grounds, on reh’g, 311 F.3d 1077 (11th Cir. 2002).
7 Peterson v. BMI Refractories, 124 F.3d 1386, 1396 (11th Cir. 1997).
8 See Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1178 n.6 (11th Cir. 2005).
9 Section 1927 sanctions are applicable to lawyers and their law firms in the 11th Circuit, but not everywhere else. See, e.g., Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1544 (11th Cir. 1993); Avirgan v. Hull, 932 F.2d 1572, 1582 (11th Cir. 1991). Avirgan was recently called into doubt by the Seventh Circuit Court of Appeals in Claiborne v. Wisdom, 414 F.3d 715 (7th Cir. 2005). In Claiborne, the Seventh Circuit held that a law firm could not be held jointly and severally liable for sanctions due to one of its attorneys’ questionable conduct that violated §1927. In so doing, the court specifically noted the differing conclusion reached by the 11th Circuit in Avirgan, because the panel there did not focus on the precise legal question at stake. Id. at 722.
The Claiborne court explicated its reasoning as follows: “Our sister circuits have come to differing conclusions without focusing on the precise legal question at stake. In Avirgan v. Hull, 932 F. 2d 1572, 1582 (11th Cir. 1991), the court declared that ‘a court may assess attorney’s fees against litigants, counsel, and law firms who willfully abuse judicial process by conduct tantamount to bad faith,’ but it offered no reason for including law firms in that list. Indeed, the case that the court cited in support of this proposition, Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed. 488 (1980), had nothing to say about law firm liability under §1927. Two other circuits have imposed sanctions on law firms but also without any discussion of this question. LaPrade v. Kidder Peabody & Co., 146 F. 3d 899 (D.C. 1998); Baker Indus., Inc. v. Cerberus Ltd., 764 F. 2d 204 (3d Cir. 1985). In contrast, the Fourth Circuit has expressed doubt that a law firm may be sanctioned under §1927. It did not definitively resolve the question, however, because it reversed an award of attorneys’ fees on the ground that the district court’s order did not specify any sanctionable conduct on the part of the firm’s attorneys. Blue v. U.S. Dep’t of the Army, 914 F. 2d 525, 549 (4th Cir. 1990). In our view, these discussions are inconclusive. We therefore consider for ourselves whether a law firm is subject to sanctions under §1927.
“The statute itself refers to ‘[a]ny attorney or other person admitted to conduct cases in any court of the United States.’ No one argues that the Lee ( sic. ) firm as a whole is actually ‘admitted to conduct cases’ before any court. Individual lawyers, not firms, are admitted to practice before both the state courts and the federal courts. See, e.g., Ind. Rules of Court 3.1(governing the admission of attorneys );
Fed. R. App. P. 46(a) (same); S.D. Ind. Local R. 83.5(b) (same). The fact that §1927 refers to ‘other person[s]’ admitted to conduct cases is of no help to the defendants. This language reflects the fact that in limited circumstances non-attorneys may appear in judicial proceedings, such as in patent proceedings or where law students receive special permission to conduct cases before they are admitted to the bar. See 37 C.F.R. §10.14 (allowing certain non-attorneys to practice before the United States Patent and Trademark Office); Ind. Rules of Court 2.1 (allowing supervised law students to act as attorneys); N.D. Ind. R. 83.9 (same). It is too much of a stretch to say that a law firm could also be characterized as such a person.
“Our conclusion has the virtue of being consistent with the rationale the Supreme Court used in Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 110 S.Ct. 456, 107 L.Ed.2d 438 (1989), when it considered the question whether sanctions were possible against a law firm under an earlier version of
Fed. R. Civ. P. 11. (The rule was amended as of December 1, 1993, to ensure that law firms could be subject to sanctions under its authority.) In Pavelic & LeFlore, however, the Court had to construe language that permitted sanctions only against the person who signed the offending document. 493 U.S. at 121, 110 S.Ct. 456. The district court, affirmed by the court of appeals, had found that this language permitted it to impose sanctions not only against the lawyer who signed the papers, but also against his law firm. The Supreme Court reversed, finding that in context the phrase ‘the person who signed’ could only mean the individual signer, not his partnership, either in addition to him or in the alternative. The language of §1927 raises exactly the same problem as the earlier version of Rule 11. Even if Pavelic & LeFlore does not strictly dictate the outcome here, it points strongly in the direction we have taken.”
Claiborne, 414 F.3d at 722-23; see also Lockary v. Kayfetz, 974 F.2d 1166 (9th Cir. 1992) (noting that sanctions could not be imposed on a law firm pursuant to §1927); and Sangui Biotech International, Inc. v. Kappes, 179 F. Supp. 2d 1240 (D. Colo. 2002) (From the wording of §1927 and the reasoning in Pavelic, sanctions under §1927 may not be imposed on law firms. ). Notably, the Amlong opinion did not mention Claiborne — undoubtedly because the Amlong law firm’s involvement was inextricably intertwined with the conduct of the Amlong attorneys themselves.
10 The basic facts are found in both the majority’s and dissenting opinions. See Amlong, 457 F.3d at 1184-1188 (majority); 457 F.3d 1204-1209 (dissent).
11 On appeal, the 11th Circuit immediately determined that §2000e-5(k) and Rule 26(g) could not have supported the district court’s award of sanctions and, hence, those issues are not addressed here.
12 The legislative history of §1927 is partially summarized in Volpert v. Ellis, 110 F.3d 494, 498 n.3 (7th Cir. 1997): “Section 1927 of Title 28 was based on, and changed the phraseology of, old 28 U.S.C. §829 (1940). See H.R.Rep. No. 80-308, at A164 (1947). In turn, old §829, which was derived from Congressional Acts of 1813 and 1853, provided: ‘If any attorney, proctor, or other person admitted to conduct causes in any court of the United States, or of any Territory, appears to have multiplied the proceedings in any cause before such court so as to increase costs unreasonably and vexatiously, he shall be required, by order of the court, to satisfy any excess of costs so increased.’”
Section 1927 originally provided that only excess costs (not fees) could be assessed against attorneys who multiplied litigation in a manner that could be characterized as unreasonable and vexatious. Later amendments provided for the sanction of attorneys’ fees, not just costs. The Antitrust Procedural Improvements Act of 1980, Pub. L. 96-349, 94 Stat. 1154, substituted judicial authorization to require attorneys to satisfy excess costs, expenses, and attorneys’ fees reasonably incurred because of multiplication of proceedings for such prior authority to impose liability for increased costs based on multiplication of proceedings. 28 U.S.C. §1927 (historical and statutory notes).
13 Avirgan, 932 F.2d at 582; Schwartz, 341 F.3d at 1225.
14 Amlong, 457 F.3d at 1190.
15 Id. (citations omitted). In support of the 11th Circuit’s clarification that §1927 sanctions require only the analysis of the attorney’s objective conduct as opposed to subjective intent, cases from the First, Fifth, Sixth, Seventh, Ninth, and 10th Circuits were cited. See Cruz v. Savage, 896 F.2d 626 (1st Cir. 1990) ; Estate of Blas ex rel. Chargualaf v. Winkler, 792 F.2d 858, 860 (9th Cir. 1989) ; Manax v. McNamara, 842 F.2d 808, 814 (5th Cir. 1988) ; Braley v. Campbell, 832 F.2d 1504 (10th Cir. 1987) ; Jones v. Continental Corp., 789 F.2d 1225 (6th Cir. 1986) ; and Knorr Brake Corp. v. Harbil, Inc., 738 F.2d 223 (7th Cir. 1984).
16 Amlong, 457 F.3d at 1191-92.
17 Id. at 1210-11 (Hill, J., dissenting) (citations omitted).
18 Judge Hill’s attack upon the majority’s description of the objective test went even further. He said: “Under the objective test, a district court may not excuse counsel’s reckless conduct because she acted with an ‘empty head, but a pure heart.’ Souran, 982 F.2d at 1508. See also Margo v. Weiss, 213 F.3d 55, 64 (2d Cir. 2000) (the objective standard eliminates any empty-head, pure-heart justification for patently frivolous arguments); Thornton v. Wahl, 787 F.2d 1151, 1154 (7th Cir. 1986) (under the objective test for sanctions, ‘[a]n empty head but a pure heart is no defense’). To excuse objectively unreasonable conduct by an attorney would be to state that one who acts ‘with an empty head but a pure heart is not responsible for the consequences.’ Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir. 1987) (quoting McCandless v. Great Atlantic and Pacific Tea Co., 697 F.2d 198, 200 (7th Cir. 1983)). This is not the law in the 11th Circuit. In our circuit, as in most others, Karen Amlong’s pure heart may not excuse her bad conduct, if it was bad.” Amlong, 457 F.3d at 1211.
Returning to this theme, Judge Hill noted: “The majority’s opinion…contains not one word about the objective recklessness of the Amlong’s ( sic. ) conduct, but exhaustively catalogues their good intentions. But this is not the law. No amount of good intentions can legitimize otherwise forbidden litigation conduct. If what counsel has done transgresses permissible bounds, counsel may not plead good faith in doing it. Were that not so, counsel who knows that his client ought, in justice, win the case could claim good faith in suborning perjury to achieve that success.” Id. at 1213 (Hill, J., dissenting).
19 See, e.g., Aloe Vera of Am., Inc. v. U.S., 376 F.3d 960 (9th Cir. 2004) (“All federal courts are vested with inherent powers enabling them to manage their cases and courtrooms effectively and to ensure obedience to their orders…as a function of this power, courts can dismiss cases in their entirety, bar witnesses, award attorney fees and assess fines.”) ( quoting F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc., 244 F.3d 1128, 1136 (9th Cir. 2001)); and Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332, 1335 (11th Cir. 2002) (“Courts have the inherent authority to control the proceedings before them, which includes the authority to impose ‘reasonable and appropriate’ sanctions.”).
20 Amlong, 457 F.3d at 1202 n.6.
21 Id. at 1211 n.15, (Hill, J., dissenting) (emphasis in original).
22 U.S. v. Aisenberg, 358 F.3d 1327, 1343 (11th Cir. 2004) ( citing Hensley v. Eckerhart, 461 U.S. 424, 437) (1983)).
23 Amlong, 457 F.3d at 1214 (Hill, J., dissenting).
24 Id. at 1203.
25 Id. at 1225.
26 Following the publication of the original opinion, the Amlong appellants filed their petition for panel rehearing on August 21, 2006. In it, the Amlong appellants only asked that the remand order should be changed to assign the case to a district judge other than Judge Lenard. That same day, the Denny’s appellees filed their petition for rehearing en banc. In it, the Denny’s appellees suggested that en banc reconsideration was appropriate because 1) the majority misapplied, misunderstood, and/or misconstrued controlling 11th Circuit and Supreme Court precedent; and, alternatively, 2) such reconsideration was necessary to provide guidance to attorneys, judges, and litigants concerning the standards and procedures for imposition of sanctions under §1927. Almost 8 weeks later, the 11th Circuit issued a revised opinion, reiterating its original holding regarding the requirement of a hearing to determine the intent and purpose of the attorneys whose conduct is at issue when considering §1927 sanctions. Notably, though, the majority added that “We do not mean to imply that it would have been an abuse of discretion for the district court to have imposed sanctions even in the absence of subjective bad faith. That issue is simply not before us today.” Amlong, 457 F.3d at 1202. In dissent, Judge Hill characterized the majority’s revised opinion as “mak[ing] clear that the district court would not abuse her discretion on remand should she reimpose sanctions without any finding whatsoever as to the [attorneys’] subjective good or bad faith.” Id. at 1203. Judge Hill, thus, asserted that remand again was improper, as no hearing was required in the district court so long as the court on remand did not impose sanctions based upon findings concerning the attorneys’ subjective intentions. Stated differently, Judge Hill held that “the narrowing of the majority’s holding by the revised opinion does, however, in my view, clearly illuminate the error inherent in the remand — it is not required.” Id. With Judge Hill’s revised dissent as their backdrop, the Denny’s appellees filed a petition for rehearing en banc of amended panel opinion on October 31, 2006. As of the date of this publication, the parties’ rehearing motions remain pending.
Glenn J. Waldman is a shareholder of Waldman, Feluren, Hildebrandt & Trigoboff, P.A., in Weston. He is a civil trial lawyer, a state and federal court mediator, and a certified arbitrator. Mr. Waldman’s practice includes complex commercial litigation, probate and estate litigation, intellectual property law, and health care and insurance law. He received his bachelor’s degree in economics, magna cum laude , in 1980 and his law degree, cum laude , from the University of Florida in 1983.
