Filed: Jul. 02, 2012
Latest Update: Mar. 26, 2017
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 11-10291 JULY 2, 2012 _ JOHN LEY CLERK D.C. Docket No. 8:09-cv-01638-SDM-TGW VALINDA S. KORNHAUSER, Plaintiff - Appellant, versus COMMISSIONER OF SOCIAL SECURITY, Defendant - Appellee. _ Appeal from the United States District Court for the Middle District of Florida _ (July 2, 2012) Before TJOFLAT, MARTIN, and HILL, Circuit Judges. TJOFLAT, Circuit Judge: I. Valinda S. Korn
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 11-10291 JULY 2, 2012 _ JOHN LEY CLERK D.C. Docket No. 8:09-cv-01638-SDM-TGW VALINDA S. KORNHAUSER, Plaintiff - Appellant, versus COMMISSIONER OF SOCIAL SECURITY, Defendant - Appellee. _ Appeal from the United States District Court for the Middle District of Florida _ (July 2, 2012) Before TJOFLAT, MARTIN, and HILL, Circuit Judges. TJOFLAT, Circuit Judge: I. Valinda S. Kornh..
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-10291 JULY 2, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:09-cv-01638-SDM-TGW
VALINDA S. KORNHAUSER,
Plaintiff - Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 2, 2012)
Before TJOFLAT, MARTIN, and HILL, Circuit Judges.
TJOFLAT, Circuit Judge:
I.
Valinda S. Kornhauser brought this lawsuit to challenge the decision of the
Commissioner of Social Security denying her claim for disability benefits. The
District Court referred the case to a Magistrate Judge for a report and
recommendation (“R&R”) on the merits of Kornhauser’s challenge. On receiving
the referral, the Magistrate Judge entered an order stating that the case would be
adjudicated on the basis of the Commissioner’s administrative record and directing
each party to submit a memorandum of law supporting its position.
After receiving and considering these memoranda, the Magistrate Judge
issued an R&R recommending that the District Court vacate the Commissioner’s
decision and remand the case to the Commissioner for further proceedings. In his
R&R, the Magistrate Judge, in addition to explaining why Kornhauser was entitled
to a vacatur, observed that the memorandum her attorney had submitted failed to
comply with Middle District of Florida Local Rule 1.05(a). Rule 1.05(a) states:
Although a quotation of three (3) lines or more may be single-spaced
and indented and a footnote shall be single-spaced in no smaller than
ten-point type, all pleadings and other papers tendered by counsel for
filing shall be typewritten, double spaced, in at least twelve-point
type, and, if filed on paper, shall be on opaque, unglazed, white paper
eight and one-half inches wide by eleven inches long (8[.5] x 11),
with one and one-fourth inch top, bottom and left margins and a one
to one and one-fourth inch right margin. Only one side of the paper
may be used.
M.D. Fla. R. 1.05(a). The non-compliance, according to the Magistrate Judge,
consisted of “smaller margins than authorized” by the rule and “footnotes . . .
2
smaller than ten-point type.”1 R&R 5, June 25, 2010. In a footnote to this
observation, he stated: “These intentional violations would justify striking the
memorandum. However, this sanction would unfairly punish the plaintiff.
Consequently, I propose that, when plaintiff’s counsel seeks attorney’s fees, that
the typical request for a cost-of-living increase be denied.” Id. at 5 n.5.
On July 14, 2010, the District Court entered an order adopting the R&R,
vacating the Commissioner’s decision, remanding the case to the Commissioner
for further consideration, and directing the Clerk to enter final judgment for
Kornhauser.2
Following the entry of judgment, Kornhauser petitioned the District Court
for an award of attorney’s fees under the Equal Access to Justice Act (“EAJA”),
28 U.S.C. § 2412(d),3 in the amount of $5,935.4 The Commissioner, responding,
1
To illustrate, the footnotes of this opinion are in twelve-point type. The words “twelve-
point type” appear in ten-point type as twelve-point type, and in nine-point type as twelve-point type.
2
In accordance with the order, the Clerk entered judgment for Kornhauser and closed the
case.
3
28 U.S.C. § 2412(d)(1)(A) provides, in relevant part, that “a court shall award to a
prevailing party other than the United States fees and other expenses, . . . unless the court finds
that the position of the United States was substantially justified or that special circumstances
make an award unjust.”
4
The request was for fees of $5,935.58. For convenience, we eliminate the fraction of a
dollar amount in subsequent references to attorney’s fees. Counsel’s petition also sought
recovery of the $350 district court filing fee and costs of $33.75. Counsel’s entitlement to these
amounts is not disputed.
3
questioned the number of hours Kornhauser’s attorney had spent on the case and
recommended an award of $4,989. The parties thereafter agreed on the fees to be
awarded and submitted to the District Court a stipulation calling for an award of
$5,000.
The District Court referred Kornhauser’s petition and the parties’ stipulation
to the Magistrate Judge for a recommendation. After considering the petition, the
Commissioner’s response, and the stipulation, the Magistrate Judge issued an
R&R recommending that the District Court award attorney’s fees in the sum of
$4,037. He reduced the stipulated figure of $5,000 by $963 as a sanction against
Kornhauser’s lawyer for having previously submitted a memorandum on the
merits that “had smaller margins than authorized by Local Rule 1.05(a), and also
contained footnotes that appeared to be smaller than the ten-point type required by
the local rule.” R&R 6, Nov. 4, 2010. In recommending the sanction, the
Magistrate Judge acknowledged that, in stipulating to an award of $5,000, the
Commissioner intended that Kornhauser’s attorney be awarded attorney’s fees of
$5,000. The Magistrate Judge gave that intent no weight, however, because “it is
the court that ultimately determines the amount of a reasonable fee, and the court
has an important interest in the enforcement of its rules.” Id. at 7.
Kornhauser’s attorney filed an objection to the R&R, asking the District
4
Court not to adopt the Magistrate Judge’s sanctions recommendation. She put her
request thusly:
[T]he undersigned counsel did not “intentionally” violate the local
rules pertaining to margins and footnote size as the Magistrate Judge
found. The undersigned counsel has been a member of this Court for
over 30 years and was not aware that the rules had changed at some
point to increase the size of the margins. While ignorance of the rules
is certainly no excuse, this was an honest mistake and was not done
with any intent to circumvent the rules of this Court.
Furthermore, the typical remedy used by courts when briefs are
filed which are not in conformance with the rules is to afford the
party the opportunity to correct the deficiency. This is the procedure
followed by the Eleventh Circuit clerk’s office whenever a brief is
filed which is not in compliance with the court rules. In this case, the
Magistrate Judge never afforded counsel the opportunity to file a
corrected brief with proper margins, but, instead, recommended
imposing sanctions by a substantial reduction in attorney fees.
Sanctions of a reduction in attorney’s fees are simply not warranted
by the facts of this case.
Kornhauser’s Objection to Nov. 4, 2010 R&R at 2.
The District Court overruled Kornhauser’s objection and imposed the
sanction the Magistrate Judge recommended, concluding that “[t]he sanction [was]
a reasonable exercise of the Magistrate Judge’s disciplinary authority.”
Kornhauser v. Comm’r of Soc. Sec., No. 8:09-cv-1638-T-23TGW, slip op. at 1
(M.D. Fla. Nov. 22, 2010). Commensurate with this ruling, the court reduced the
attorney’s fees the parties had agreed to, and awarded fees of $4,037, ordering that
the fees will be payable to Kornhauser’s attorney “after the Commissioner
5
determines that the plaintiff owes no federal debt.”5 Id. at 2.
Kornhauser now appeals the District Court’s sanctions decision.6 The
decision is not sustainable. We accordingly vacate the decision and instruct the
District Court on receipt of our mandate to amend its EAJA order to provide for
the payment of attorney’s fees of $5,000.
II.
The legal authority the District Court drew upon for sanctioning
Kornhauser’s attorney was the court’s inherent power to manage the orderly and
efficient disposition of the cases before it. Chambers v. NASCO, Inc., 501 U.S.
32, 43,
111 S. Ct. 2123, 2132,
115 L. Ed. 2d 27 (1991). This “inherent power . . .
can be invoked even if procedural rules exist which sanction the same conduct.”
Id. at 49, 111 S. Ct. at 2135. In this case, we find no procedural rule that sanctions
the conduct involved.7
5
The court also awarded Kornhauser $350 in costs and $33.75 in expenses in accordance
with the Magistrate Judge’s recommendation. Kornhauser had assigned the attorney’s fees to her
attorney, with the intent that fees be paid to the attorney since she had no pending federal debt.
6
The District Court’s order awarding the attorney’s fees, costs and expenses is a final
decision. We therefore have jurisdiction to review the decision under 28 U.S.C. § 1291.
7
Several Federal Rules of Civil Procedure authorize sanctions in the form of attorney’s
fees for lawyer misconduct: Rule 11 (certification requirement for papers), Rule 16(f) (pretrial
conferences), Rule 26(g) (certification requirement for discovery requests), Rule 30(g) (oral
deposition), Rule 37 (failure to cooperate with discovery), Rule 56(g) (affidavits accompanying
summary judgment motions); see also Chambers v. NASCO, Inc., 501 U.S. 32, 42 n.8,
111 S. Ct.
2123, 2131 n.8,
115 L. Ed. 2d 27 (1991). “Although they differ by context, [these] sanctioning
6
The District Court’s inherent power should be exercised with caution and its
invocation requires a finding of bad faith. Id. at 50, 111 S. Ct. at 2136; see also In
re Mroz, 65 F.3d 1567, 1575 (11th Cir. 1995) (“Invocation of a court’s inherent
power requires a finding of bad faith.”). In exercising its inherent power to
impose sanctions, a court must “comply with the mandates of due process, both in
determining that the requisite bad faith exists and in assessing fees.” Chambers,
501 U.S. at 50, 111 S. Ct. at 2136. When the individual being sanctioned is an
attorney before the court, as is the situation here, complying with the mandates of
due process means that the attorney must, first, be afforded “fair notice that [her]
conduct may warrant sanctions and the reasons why,” and, second, “be given an
opportunity to respond, orally or in writing, to the invocation of such sanctions
and to justify [her] actions.” Mroz, 65 F.3d at 1575–76 (citing Donaldson v.
Clark,
819 F.2d 1551, 1559–60 (11th Cir. 1987)). The inherent power is to be
used to fashion an “appropriate sanction.” Chambers, 501 U.S. at 44, 111 S. Ct. at
2133; see also Martin v. Automobili Lamborghini Exclusive, Inc.,
307 F.3d 1332,
1335 (11th Cir. 2002) (noting that a court’s inherent authority “includes the
mechanisms are similar in that they are all rooted in the same basic goals—protecting the court
and the public from litigation which impedes the administration of justice.” Byrne v. Nezhat,
261 F.3d 1075, 1131 n. 110 (11th Cir. 2001).
7
authority to impose ‘reasonable and appropriate’ sanctions.” (citing Malautea v.
Suzuki Motor Co., Ltd., 987 F.2d 1536, 1545 (11th Cir. 1993))).
We review the District Court’s exercise of its inherent power to sanction
counsel for abuse of discretion. Pedraza v. United Guar. Corp., 313 F.3d 1323,
1328 (11th Cir. 2002). This means that “unless we find that the district court has
made a clear error of judgment, or has applied the wrong legal standard,” we will
not disturb its decision. Aldana v. Del Monte Fresh Produce N.A., Inc.,
578 F.3d
1283, 1288 (11th Cir. 2009) (quoting United States v. Frazier,
387 F.3d 1244,
1259 (11th Cir. 2004) (en banc)) (internal quotation marks omitted).
The District Court abused its discretion in this case by failing to “comply
with the mandates of due process.” Chambers, 501 U.S. at 50, 111 S. Ct. at 2136.
The only notice Kornhauser’s attorney received, which informed her that she
might be sanctioned for failing to comply with Local Rule 1.05(a), came in the
form of a footnote to the Magistrate Judge’s R&R issued on June 25, 2010
addressing the merits of Kornhauser’s challenge to the Commissioner’s decision.
The Magistrate Judge never asked Kornhauser’s attorney for a response; he didn’t
need a response because he had already decided sua sponte to recommend, when
the attorney applied for an award for attorney’s fees, that the District Court
sanction the attorney for violating Local Rule 1.05(a). Thus, in the July 14, 2010
8
R&R he sent to the District Court on the EAJA fees issue, he did not recommend
that the District Court issue an order requiring the attorney to show cause why she
should not be sanctioned. The Magistrate Judge did not recommend the issuance
of an order to show cause because he had already branded counsel’s violation of
the local rule “intentional” and worthy of sanction—no explanation could suffice
to excuse the violation.
Had the Magistrate Judge recommended, and the District Court issued, an
order requiring the attorney to show cause why she should not be sanctioned and
then, after receiving her response, met with her face-to-face, the court might have
concluded that striking the memorandum would have been the simplest, and more
appropriate, sanction for failing to comply with Local Rule 1.05(a).8 By branding
the attorney’s rule violation “intentional” and imposing a monetary sanction
without affording counsel an opportunity to show cause—“to respond . . . to the
invocation of [the] sanctions and to justify [her] actions,” Mroz, 65 F.3d at
1575–76—the District Court denied the attorney due process of law and therefore
abused its discretion.
8
This case, including the EAJA and the sanctions issues, was litigated on paper, i.e., the
record of the litigation of Kornhauser’s disability claim before the Commissioner, the
memoranda of law submitted to the Magistrate Judge on the merits of Kornhauser’s challenge to
the Commissioner’s decision, and the papers submitted to the District Court in connection with
Kornhauser’s EAJA petition. At no time did counsel for the parties appear in person before the
Magistrate Judge or the District Court.
9
III.
For the foregoing reasons, the EAJA award order is VACATED. The
District Court is instructed, upon receiving our mandate, to enter an order granting
Kornhauser EAJA attorney’s fees in the sum of $5,000.
SO ORDERED.
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