Mitchell v. AT&T Corporation

Before NIEMEYER, LUTTIG, and WILLIAMS, Circuit Judges.

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No. 98-1738 reversed and No. 98-1822 affirmed by unpublished per

curiam opinion.

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COUNSEL

John William Karr, Washington, D.C., for Appellant. Stephen Wil-

liam Robinson, MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P.,

McLean, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

In these appeals, the parties challenge the district court's rulings on

requests for attorneys' fees and costs under three different statutes. In

Mitchell v. AT&T Corp., No. 96-2223, No. 97-1071 (4th Cir. Dec. 16,

1997) (unpublished), this court affirmed the entry of summary judg-

ment against Mitchell in her action against AT&T Corporation

(AT&T), her former employer, under the Americans with Disabilities

Act, 42 U.S.C.A. §§ 12101-12213 (West 1995). We affirmed as well

the district court's entry of sanctions against Mitchell's counsel, John

Karr, under Fed. R. Civ. P. 11, and remanded for further consider-

ation of AT&T's request for costs and attorneys' fees under 28 U.S.C.

§ 1927 (1994); 42 U.S.C.A. § 1988(b) (West Supp. 1998); and 42

U.S.C.A. § 2000e-5(k) (West Supp. 1998).

On remand, the district judge who initially had handled the case

recused himself. The new district judge reviewed the record and

found that, once AT&T advised Karr of Fourth Circuit caselaw which

eliminated the possibility of establishing a prima facie case, Karr's

actions in persisting in the litigation made him personally liable for

any fees and costs from that date to the date that AT&T filed its

motion for summary judgment--$9985.83 over seventeen days. Both

sides appeal.

This court has held that a finding of bad faith is a necessary pre-

condition to imposition of fees on an attorney under§ 1927. Brubaker

v. City of Richmond, 943 F.2d 1363, 1382 n.25 (4th Cir. 1991); see

Chaudry v. Gallerizzo, ___ F.3d ___ (4th Cir. Apr. 5, 1999) (No. 98-

1024), slip op. at 21 n.14. The holding by the original district judge

that neither Mitchell nor Karr acted in bad faith, which was affirmed

by this court on appeal, constitutes the law of the case and binds the

second district judge. United States v. Aramony , 166 F.3d 655, 661

(4th Cir.), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Apr. 27,

1999) (Nos. 97-4363, 97-4540). Therefore, the award of costs and

fees against Karr under § 1927 is an abuse of discretion which we

now reverse. As attorneys are not personally liable for costs and fees

under 42 U.S.C. § 1988 or 42 U.S.C. § 2000e-5(k), the award cannot

be sustained under those statutes. See Roadway Exp., Inc. v. Piper,

447 U.S. 752, 761 & n.9 (1980).

Attorneys' fees may be awarded to prevailing defendants under

§ 1988(b) and § 2000e-5(k) where the action is unreasonable, frivo-

lous, or without foundation, although not brought in subjective bad

faith. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421

(1978). In order to make such an award to defendants, the district

court must find that the claim "was frivolous, unreasonable, or

groundless, or that the plaintiff continued to litigate after it clearly

became so." Id. at 422. There is no requirement that plaintiff have

acted in bad faith. Id. This court reviews the district court's ruling for

abuse of discretion. Hitachi Credit Am. Corp. v. Signet Bank, 166

F.3d 614, 631 (4th Cir. 1999).

The district court in this case exercised its discretion in denying

fees to AT&T under either § 1988(b) or § 2000e-5(k). We cannot say

that this holding constitutes an abuse of discretion. Therefore, we

affirm the district court's ruling in this regard.

Accordingly, we reverse the district court's decision granting costs

and attorneys' fees against counsel under § 1927. We affirm the dis-

trict court's denial of costs and attorneys' fees against Mitchell under

§ 1988(b) and § 2000e-5(k). We dispense with oral argument because

the facts and legal contentions are adequately presented in the materi-

als before the court and argument would not aid the decisional pro-

cess.

No. 98-1738 -- REVERSED

No. 98-1822 -- AFFIRMED