Reynolds v. Dept/Transportation, et al

Filing 9046

MEMORANDUM OPINION AND ORDER DENYING the defendants' 8791 request that the district court take further action on the 1927 sanctions issue, as further set out in order. Signed by Chief Judge William Keith Watkins on 7/16/14. (Attachments: # 1 civil appeals checklist)(djy, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JOHNNY REYNOLDS, et al.,
Plaintiffs,
v.
ALABAMA DEPARTMENT OF
TRANSPORTATION, et al.,
Defendants.

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CASE NO. 2:85-CV-665-WKW
[WO]

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This action comes to the undersigned in a unique procedural posture after
more than a decade of inaction with respect to an unresolved sanctions issue. Over
fourteen years ago in this nearly thirty-year-old case, on March 29, 2000, a panel
of the Eleventh Circuit issued an immediate mandate to a prior “chief judge of the
Middle District of Alabama [to] assign the case to himself or another district judge
(other than Judge Thompson) for the purpose of enabling plaintiffs’ counsel to
show cause why section 1927 sanctions should not be awarded to the Adams
Intervenors.” (Doc. # 4390.) Judge Ira DeMent, the district judge who was tasked
by the chief judge to fulfill the mandate, dutifully and promptly entered orders,
requiring counsel for Plaintiffs to submit a written response and evidence relevant
to the Eleventh Circuit’s sua sponte sanctions inquiry. At the same time, the

district judge “emphasize[d] that it [was] not the function of this court to determine
whether or not sanctions should be assessed but simply to give counsel for
Plaintiffs an opportunity to show cause why they should not be assessed by the
Eleventh Circuit.” The culmination of the show-cause proceedings in the district
court resulted in the filing of “briefs and a smorgasbord of evidentiary materials,
including affidavits, depositions and a 19.5 pound box of exhibits,” and a finding
that the written submissions were adequate without the need for an evidentiary
hearing. (Doc. # 4889.) The district judge then entered an Order on March 28,
2001, certifying the show-cause filings and exhibits to the Eleventh Circuit.
Counsel for Plaintiffs appealed the district judge’s Order, and the appeal was
assigned to a different three-judge panel (“sanctions appeal”).

Counsel for

Plaintiffs argued that the district judge had failed to comply with the mandate by
denying them a hearing and declining to enter findings on the § 1927 sanctions
issue. In their appellate briefs, Defendants and the Adams Intervenors argued that
the prior panel had reserved for itself the final decision as to whether to impose
§ 1927 sanctions against counsel for Plaintiffs and that there was no final or
appealable order. The panel assigned to the sanctions appeal dismissed it on
grounds that the “district court’s March 28, 2001, order, issued in response to this
Court’s March 29, 2000, order giving instructions regarding sanctions pursuant to
28 U.S.C. § 1927, did not resolve the sanctions issue and, thus, is not final.” That
2

was on October 24, 2001. The sanctions issue lay dormant in the district court –
with no request from any party that the district court take any action on the § 1927
sanctions issue – until more than a decade later.
On February 14, 2012, Defendants ALDOT and the State Personnel
Department filed a motion with Chief United States District Judge W. Keith
Watkins.

In that motion, Defendants contended that the “ALDOT remains

interested in pursuing its interest in having Plaintiffs’ counsel assessed sanctions
pursuant to 28 U.S.C. § 1927, so that ALDOT may recoup some of the money it
paid to the Adams Intervenors for their attorneys’ fees incurred as a result of
Plaintiffs’ counsels’ actions relating to this issue.”

(Doc. # 8791, at ¶ 33.)

Defendants moved for a status conference “for the purpose of appointing a new
judge” (other than Judge Thompson) to resolve the § 1927 sanctions issue, to
permit “the ALDOT to be heard as the Real Party in Interest” on the sanctions
issue, and for a new district judge “to take the next procedural step in the light of
the Eleventh Circuit’s rulings.”1 (Doc. # 8791.) The requested status conference
was held on March 22, 2012. This Memorandum Opinion and Order explains why
Defendants are not entitled to the relief they request.

1

The assignment of a new district judge to handle the sanctions issue has been requested
based upon the death of Judge DeMent in July 2011.
3

II.
A.

BACKGROUND

Summary of Reynolds2
Almost three decades ago, in 1985, a number of current and former African-

American employees and job applicants brought a class-action suit against the
Alabama Department of Transportation (“ALDOT”), alleging race discrimination
with respect to certain employment actions. The named Plaintiffs sought monetary
and injunctive relief under 42 U.S.C. §§ 1981, 1983, and 2000e. In 1986, the
Honorable Myron H. Thompson, the district judge assigned to the case, certified
three Plaintiff classes. In November 1993, the parties reached a partial settlement
in the form of a proposed consent decree. This proposed consent decree provided a
range of prospective class-wide injunctive relief, such as hiring and promotion
quotas and set-asides for African-Americans, an aggressive recruiting campaign at
historically black institutions of higher education, and a grievance procedure for
existing employees. The parties presented the proposed consent decree to Judge
Thompson, who set the matter for a hearing in January 1994.
Prior to that hearing, a group of Caucasian employees of the ALDOT (the
“Adams Intervenors”) moved for leave to intervene on behalf of the ALDOT’s
2

This opinion is not about the entire sea of Reynolds, as Reynolds is assigned to another
district judge of this court. This opinion is only about one grain of sand on the Reynolds beach –
the § 1927 sanctions issue. But some background on Reynolds is helpful for context. The
summary is adapted from Defendants’ well-written, concise overview of the long-running
Reynolds litigation. (See Doc. # 8791.) The summary is not meant to be a comprehensive
review.
4

non-African-American employees in order to challenge the race-conscious
provisions of the proposed consent decree, including the quota requirement for all
job classifications at the ALDOT.

Judge Thompson granted the Adams

Intervenors’ motion for leave to intervene and eventually certified a class
consisting of the ALDOT’s non-African-American employees.
At the hearing on the proposed consent decree, after numerous objections
were raised, the parties withdrew the proposal and resumed negotiations.
Thereafter, the parties submitted a revised consent decree, “Consent Decree I.”
After another hearing at which no one appeared to raise objections to Consent
Decree I, Judge Thompson approved it and adopted it in full in March 1994.
Consent Decree I contained a series of articles that revamped the processes
by which the ALDOT hires, promotes, classifies, and pays its employees. It
created new qualifications and procedures for hiring and promotions at the
ALDOT. Part of Consent Decree I included a study of ALDOT employees to
determine if any were being assigned duties associated with a higher job
classification, and if so, to reclassify such employees. Another part of Consent
Decree I contained a grievance procedure that individual employees could use to
assure all discrimination complaints were processed quickly and without
retaliation.

5

By 1996, a number of African-American employees of the ALDOT had filed
grievances in which they alleged that the ALDOT had assigned them out-ofclassification duties. Each sought back pay and a provisional appointment to the
position for which he was performing the duties. At least two of these grievances
eventually made their way to the district court for a ruling. The district court
ordered back pay and issued an injunction requiring the provisional appointments
for the grievants.
By late 1996, three white employees of the ALDOT also had filed
grievances alleging that they too had been assigned duties outside of their job
classifications in violation of Consent Decree I. They successfully invoked the
grievance procedures in the Reynolds Consent Decree I and obtained awards from
an EEO monitor of provisional appointments to higher-paid positions and back
pay. Plaintiffs’ counsel filed a motion for preliminary injunction to enjoin the
ALDOT from implementing the relief awarded to the Adams Intervenors, which
the district court granted. The Adams Intervenors appealed from the issuance of
the preliminary injunction prohibiting Defendants from implementing the back pay
and provisional appointments awarded to the three white employees.
B.

Procedural Time Line
The procedural time line with respect to the discrete § 1927 sanctions issue,

which is the sole matter before this court, is important. The following is a detailed
6

chronology of that history. The history begins with the Eleventh Circuit’s March
29, 2000 mandate in the Adams Intervenors’ appeal.
1.

The Eleventh Circuit’s Mandate

The § 1927 sanctions issue arises out of the Adams Intervenors’ appeal and
the mandate issued in Reynolds v. Roberts, 207 F.3d 1288 (11th Cir. 2000) [Appeal
No. 97-6347].

In Reynolds, the Eleventh Circuit held that the provisions of

Consent Decree I are race neutral and that the benefits of those provisions are
available to all employees regardless of race. The Eleventh Circuit found that
Plaintiffs’ counsel “invited the error the district court committed when it entered
the preliminary injunction barring the [ALDOT] from affording the three white
grievants the provisional appointments and backpay the EEO Monitor awarded to
them.” Id. at 1301. It also concluded that Plaintiffs’ counsel “attempted to defend
the district court’s ruling on appeal with baseless arguments.” Id.
A majority of the three-judge panel in Reynolds concluded that Plaintiffs’
counsel’s efforts to “prevent[ ] the three white grievants from obtaining provisional
appointments and back pay” and proceeding “as if the white grievants had done
something unlawful by invoking the race-neutral complaint procedure,” was an
“abuse” of the “judicial process” that “was as gross as any we have encountered.”
Id. Consequently, the Eleventh Circuit sua sponte addressed its authority to issue
§ 1927 sanctions against Plaintiffs’ counsel, stating that:
7

We have also considered whether we have the authority under 28
U.S.C. § 1927 (1994) to award these [Adams] intervenors “excess
costs, expenses, and attorneys’ fees reasonably incurred” because of
counsel’s conduct. The courts of appeals have section 1927 authority.
Counsel subject to section 1927 sanctions are entitled to be heard
regarding the matter; accordingly, on receipt of the mandate, the chief
judge of the Middle District of Alabama will assign the case to
himself or another district judge (other than Judge Thompson) for the
purpose of enabling plaintiffs’ counsel to show cause why section
1927 sanctions should not be awarded to the Adams Intervenors.
Id. at 1301–02; (see also Doc. # 4390.)3

The Eleventh Circuit also directed

immediate issuance of the mandate.
2.

District Court Proceedings

On April 11, 2000, after receipt of the immediate mandate, Chief Judge W.
Harold Albritton assigned Judge Truman M. Hobbs the case “for the limited
purpose of enabling Plaintiffs’ counsel to show cause why sanctions under 28
U.S.C. § 1927 should not be awarded to the Adams Intervenors.” (Doc. # 4395.)
On May 5, 2000, Chief Judge Albritton entered an Order reassigning this
case to Judge Ira DeMent “for the limited purpose of consideration of sanctions
issues on remand from the Court of Appeals.”
On May 23, 2000, Judge DeMent entered an Order, reciting the nature of the
limited remand and setting a briefing schedule to permit counsel for Plaintiffs to

3

The third judge on the panel, U.S. District Judge Richard W. Story, sitting by
designation, dissented from the sanctions section of the court’s opinion, stating: “I would not
impose sanctions. Though plaintiffs’ counsel sought the wrong form of relief, they were
attempting to be vigilant in protecting their client’s rights rather than being unreasonable and
vexatious.” 207 F.3d at 1302–03.
8

“show cause . . . as to why § 1927 sanctions should not be awarded to the Adams
intervenors.” (Doc. # 4456.)
On May 30, 2000, Judge DeMent entered an Order vacating the briefing
schedule, upon counsel for Plaintiffs’ motion, based upon the pendency of a
petition for rehearing and rehearing en banc pending in the Eleventh Circuit. (Doc.
# 4464.)
On January 3, 2001, which was after the Eleventh Circuit had denied
counsel for Plaintiffs’ application for rehearing and rehearing en banc, Judge
DeMent entered an Order with a new briefing schedule. The Order required
counsel for Plaintiffs to “show cause . . . as to why § 1927 sanctions should not be
awarded to the Adams intervenors” and “invited” counsel for Plaintiffs to submit
“affidavits and any other admissible evidence.”

(Doc. # 4680, at 4.)

Judge

DeMent also permitted counsel for the Adams Intervenors to file a response, “if
desired.” (Doc. # 4680, at 4 (citing Braley v. Campbell, 832 F.2d 1503, 1515 (10th
Cir. 1987) (observing that, “[i]f the court has acted sua sponte, the prevailing party
should be notified that it may, but need not, participate in the proceedings to
determine whether sanctions should be imposed”).) The Order also “emphasize[d]
that it is not the function of this court to determine whether or not sanctions should
be assessed but simply to give counsel for Plaintiffs an opportunity to show cause
why they should not be assessed by the Eleventh Circuit.” (Doc. # 4680, at 4.)
9

The Order concluded by providing that after receiving the evidence, “the court
w[ould] notify the parties if it deem[ed] necessary further briefing, oral argument
and/or an evidentiary hearing.” (Doc. # 4680, at 5.)
On January 17, 2001, counsel for Plaintiffs filed a motion, requesting,
among other relief, a hearing on the § 1927 sanctions issue. Counsel for Plaintiffs
noted that the January 3, 2001 Order provided that a hearing would be held only if
the court deemed one necessary after reviewing the written submissions. Counsel
for Plaintiffs argued that “the issues here are of such magnitude and of such import
tha[t] an evidentiary hearing is essential to a full and fair presentation of their
response to the order to show cause, and such a consideration can only be achieved
by an ore tenus hearing.” (Doc. # 4706, at 2.) Counsel for Plaintiffs named as
potential witnesses an expert on legal ethics, representatives of opposing parties,
the plaintiffs in prior proceedings, and Judge Thompson. They argued that without
testimony from these witnesses, “counsel is at risk of being sanctioned for conduct
that they are satisfied did not occur.” (Doc. # 4706, at 2.) Also on January 17,
2001, Plaintiffs’ counsel filed an evidentiary submission, which included counsel
for Plaintiffs’ affidavit, “seven volumes of exhibits,” and declarations from three
employees. (Doc. # 4709.)
On January 30, 2001, the ALDOT filed a motion to intervene on grounds
that it “already ha[d] paid the attorneys’ fees of the Adams Intervenors’ counsel
10

pursuant to an Attorneys’ Fees Agreement dated February 20, 1996.” The ALDOT
contended that “any sanction that is measured in terms of the attorneys’ fees
incurred by the Adams Intervenors should result in repayment of these amounts to
The ALDOT asserted that it was “the real party in interest in these

[it].”

proceedings in terms of recovery of attorneys’ fees.” The ALDOT limited its
“intervention request . . . to intervening for the purpose of recovering the attorneys’
fees it ha[d] paid to the Adams Intervenors.” (Doc. # 4737.)
On January 31, 2001, Judge DeMent entered an Order denying Plaintiffs’
motion for an evidentiary hearing “at this time.” The Order provided that the court
would “notify the parties if it deem[ed] necessary an evidentiary hearing.” The
Order permitted the parties to file written statements from the witnesses proposed
by counsel for Plaintiffs in a prior filing and extended the submission deadlines for
all parties. (Doc. # 4748.)
Also on January 31, 2001, Judge DeMent entered an Order denying the
ALDOT’s motion to intervene. Judge DeMent concluded that the ALDOT “must
address the United States Court of Appeals for the Eleventh Circuit with its request
to intervene.”4 (Doc. # 4746.)

4

Several discovery motions and motions for extension of time were filed and ruled on by
Judge DeMent, but more detail as to these motions is not necessary for resolution of the present
issue. (See, e.g., Docs. # 4717, 4733, 4738, 4745, 4764, 4765, 4768, 4771, 4772.) Plaintiffs’
counsel also filed additional evidence. (Doc. # 4766.)
11

On March 1, 2001, the final submission on the sanctions issue was filed.
(Doc. # 4821 (Adams’s Intervenors’ “final reply”).)
On March 28, 2001, Judge DeMent entered an Order providing that
the court, as instructed by the Eleventh Circuit, has given Plaintiffs’
counsel an opportunity to be heard on the issue of whether or not
§ 1927 sanctions should be assessed against them and awarded to the
Adams intervenors. Plaintiffs’ counsel filed briefs and a smorgasbord
of evidentiary materials, including affidavits, depositions and a 19.5
pound box of exhibits.
(Doc. # 4889.) The Order further provided that, based upon a review of all
submissions on the sanctions issue, further briefing, oral argument, and an
evidentiary hearing were unnecessary. Accordingly, Judge DeMent ordered the
Clerk of the Court to certify the pleadings and exhibits filed in connection with the
show-cause proceedings to the Eleventh Circuit. (Doc. # 4889 (listing docket
entries for certification).) The district court’s docket reflects that the certified
record was transmitted to the Eleventh Circuit on April 2, 2001.
3.

Back to the Eleventh Circuit

On April 18, 2001, counsel for Plaintiffs filed a notice of appeal with the
Eleventh Circuit, appealing “from the judgment or collateral order entered in this
action on the 28th day of March, 2001, finding and adjudicating that appellants are
not entitled to a hearing on the issues before the District Court, and otherwise
failing to comply with the mandate of the Court of Appeals which directed that the

12

Court conduct a hearing, receive evidence, and make reviewable findings of fact
on the issue of sanctions.” (Doc. # 4941.)
A different three-judge panel was assigned the appeal. The panel consisted
of Judges Edmondson, Barkett, and Wilson.
On August 6, 2001, Defendants, which included the ALDOT, filed their
appellate brief in which they joined the Adams Intervenors in urging the Eleventh
Circuit to dismiss the appeal on grounds that it was “not final or appealable.” (See
Doc. # 8805-1 (emphasis in original).) Defendants reasoned, first, that Judge
DeMent’s March 28, 2001 Order “simply certified an evidentiary record to th[e
Eleventh Circuit] for purposes of further proceedings” in the circuit and, second,
that an interlocutory order imposing sanctions is not appealable. (Doc. # 8805-1,
at 11.) Defendants argued on appeal that “it could not be more clear that this Court
[the Eleventh Circuit] intended to reserve to itself the final decision as to
imposition of sanctions” against Plaintiffs’ counsel pursuant to § 1927. Because
the Reynolds opinion, according to Defendants, “plainly indicated an intent for this
Court to make the final determination as to sanctions, it was unnecessary for the
opinion to expressly reserve jurisdiction.” (Doc. # 8805-1, at 32.) Defendants
argued, alternatively, that, “[e]ven if th[e Eleventh Circuit] had divested itself of
jurisdiction over the sanctions issue, and Judge DeMent’s order certifying the
evidentiary record was therefore ineffective, appeal of the order would still have to
13

wait final resolution of all other issues in the case.” (Doc. # 8805-1, at 32–33.)
Defendants further contended that they had a “direct interest” in the sanctions
inquiry based on counsel for Plaintiffs’ argument that the Adams Intervenors
incurred no “excess costs, expenses, and attorneys’ fees” within the meaning of §
1927 because the ALDOT had paid the Adams Intervenors’ fees and expenses
pursuant to a 1996 fee arrangement.
In an Order entered on October 24, 2001, the panel reviewing the sanctions
appeal granted the Adams Intervenors’ motion to dismiss the appeal. The Order
reads:
Appellees’ motion to dismiss is GRANTED, and this appeal is
DISMISSED. The district court’s March 28, 2001, order, issued in
response to this Court’s March 29, 2000, order giving instructions
regarding sanctions pursuant to 28 U.S.C. § 1927, did not resolve the
sanctions issue and, thus, is not final. See 28 U.S.C. § 1291;
Delaney’s Inc. v. Illinois Union Ins. Co., 894 F.2d 1300, 1304–05
(11th Cir. 1990).
(Doc. # 5343.)
4.

More than a Decade of Dormancy in the District Court

After the second panel’s dismissal of the appeal on October 24, 2001,
neither the district court nor any party – not counsel for Plaintiffs, not the Adams
Intervenors, and not Defendants – took any action on the § 1927 sanctions issue.
On July 11, 2003, however, counsel for all parties received correspondence from
the Eleventh Circuit Clerk of the Court.
14

By letter dated July 11, 2003, the

Eleventh Circuit Clerk issued the following memorandum to “counsel or parties”
concerning Appeal No. 97-6347 (Reynolds):
Part of the Court’s mandate in this case required the district court to
hold a hearing to enable “plaintiffs’ counsel to show cause why [28
U.S.C.] section 1927 sanctions should not be awarded to the Adams
Intervenors.” The Court directs counsel to send the Court a letter
within fourteen (14) days informing the Court of the status of the
show cause proceedings. Specifically, the Court wants to know
whether the district court held the show cause hearing, and, if so,
whether counsel tendered a lawful explanation for the conduct the
Court’s opinion condemned (in the first paragraph of part III).
(Doc. # 8805-2 (Ex. 2).) 5
The parties responded to the Eleventh Circuit Clerk’s letter, outlining the
chronology of the show-cause proceedings in the district court.

The Adams

Intervenors also advised the Eleventh Circuit that their fees for the Reynolds
grievance proceedings (and the show-cause proceedings) had been paid by the
ALDOT pursuant to a separate fee agreement between Defendants and the Adams
Intervenors. Of particular relevance to the present proceedings, Defendants took
the position that “Judge DeMent appropriately confined his inquiry to the issue of
whether sanctions were warranted.” (Defs.’ Letter 6.) Defendants continued:
“[Judge DeMent’s] scheduling orders did not provide for argument or evidentiary
5

The Eleventh Circuit Clerk’s July 11, 2003 letter was not addressed or copied to the
district court. The district court also is not included in the “cc” section of counsel’s letters
responding to the Eleventh Circuit Clerk, and there is no indication or suggestion in the record or
from the parties that the district court received a copy of this letter. The Clerk’s letter is
attached, however, as an exhibit to Document Number 8805, which is Plaintiffs’ response to
Defendants’ February 2012 request for a status conference.
15

submissions concerning the type of sanctions or the amount of any monetary
sanctions that might be appropriate. If this Court determines that sanctions are
warranted, it presumably will establish procedures for such submissions or remand
the case for further proceedings in that regard.”6 (Defs.’ Letter 6.)
On January 31, 2005, there is a docket text notation in the district court’s
electronic record that reads: “Appeal Record Returned from USCA re 97-6347HH.” The docket text notation was entered by a clerk’s office employee in the
Middle District of Alabama. The electronic file contains no accompanying order,
mandate, or other directive from the Eleventh Circuit.
Nothing occurred in the district court on the sanctions issue until seven years
later on February 14, 2012, when Defendants filed the instant motion for a status
conference, seeking resolution of the § 1927 sanctions issue by the district court.
The undersigned entered an Order on March 1, 2012, setting an on-the-record
status conference for March 22, 2012, and further directing Plaintiffs and the
Adams Intervenors to file responses to the motion.
In their response, Plaintiffs argue that the district court does not need to
reach the substantive sanctions issue. (Doc. # 8805.) They contend that the district
court should not conduct any further proceedings on or resolve the § 1927
sanctions issue for a number of reasons, including that (1) Defendants waived any
6

Counsel for Defendants tendered copies of the letters at the March 22, 2012 hearing
before the undersigned, and the letters have been placed into the record (Doc. # 9044).
16

claim to pursue § 1927 sanctions against Plaintiffs’ counsel, (2) the Eleventh
Circuit retained jurisdiction to determine the issue of sanctions, (3) Judge DeMent
“fully complied” with the mandate “by assembling an extensive evidentiary
record” and “certifying that record back to the Court of Appeals for it to decide the
issue of sanctions,” (4) Defendants are judicially estopped from changing their
litigation position after more than a decade to argue that the district court, rather
than the Eleventh Circuit, must decide whether the Adams Intervenors are entitled
to an award of § 1927 sanctions, (5) Defendants waived any right to intervene by
not asking the Eleventh Circuit in 2001 for leave to intervene, as Judge DeMent’s
March 28, 2001 Order required, (6) Defendants’ present request to intervene is
“inherently untimely,” and (7) the administrative return of the record to the district
court in 2005 is not tantamount to a second remand.
The Adams Intervenors’ response focuses less on legal doctrine and more on
surprise because “[t]he filing of this motion [for a status conference] is the first
indication in many years that ‘ALDOT remains interested in pursuing its interest in
having Plaintiff’s counsel assessed sanctions.’” (Doc. # 8800 ¶ 6.) The Adams
Intervenors represent that “many years ago, the former lead counsel for the State
defendants informed the undersigned that the State defendants had affirmatively
determined not to pursue the matter of § 1927 sanctions further.” (Doc. # 8800,
at ¶ 6.)

Additionally, after remarking that this never-ending litigation bears
17

marked similarities to the litigation decried in Charles Dickens’s Bleak House, the
Adams Intervenors make a plea, “welcom[ing] any assistance the Chief Judge may
provide in facilitating a resolution of any and all remaining matters in this
litigation.” (Doc. # 8800, at 5.) The Adams Intervenors’ brief makes no request
one way or the other that the district court should resolve or not resolve the
sanctions issue. The undersigned court held the status conference on March 22,
2012, and took the matter under advisement.
III. DISCUSSION
“The principle that the passage of time can preclude relief has deep roots in
our law, and th[e] Supreme Court has recognized this prescription in various
guises.” City of Sherrill, N.Y. v. Oneida Indian Nation of N.Y., 544 U.S. 197, 217
(2005). That principle applies here, but admittedly, the reasons justifying the
preclusion of relief do not fit perfectly into any one equitable guise. Nonetheless,
for the reasons that follow, based upon Defendants’ eleven years of inaction in the
district court, coupled with their action in the Eleventh Circuit that is inconsistent
with their present position,7 the concepts of waiver, judicial estoppel, and laches,
whether considered individually or cumulatively, present a clear bar to the relief

7

Defendants are not the only parties to change legal positions in the long respite from
sanctions activities. In 2001, Plaintiffs appealed Judge DeMent’s resolution, on grounds entirely
opposite to their arguments here. The passage of time is the modifier.
18

Defendants now request to have the § 1927 sanctions issue proceed further in the
district court.
“[W]aiver is the intentional relinquishment or abandonment of a known
right.” United States v. Olano, 507 U.S. 725, 733 (1993) (citation and internal
quotation marks omitted). As to judicial estoppel,
where a party assumes a certain position in a legal proceeding, and
succeeds in maintaining that position, he may not thereafter, simply
because his interests have changed, assume a contrary position,
especially if it be to the prejudice of the party who has acquiesced in
the position formerly taken by him. This rule, known as judicial
estoppel, generally prevents a party from prevailing in one phase of a
case on an argument and then relying on a contradictory argument to
prevail in another phase.
New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (internal citation and
quotation marks omitted). Finally, to establish laches, it must be shown that
(1) there was a delay in asserting the right or claim, (2) the delay was not
excusable, and (3) the delay caused undue prejudice. United States v. Barfield, 396
F.3d 1144, 1150 (11th Cir. 2005).
Beginning with discussion of the equitable doctrine of waiver, Defendants’
prior conduct indicates that any right that the ALDOT may have had to advocate
for the imposition of § 1927 sanctions against counsel for Plaintiffs has been
abandoned. In his March 8, 2012 filing with this court, counsel for the Adams
Intervenors, Raymond Fitzpatrick, Jr., represented that “[m]any years ago, the
former lead counsel for the State defendants informed the undersigned that the
19

State defendants had affirmatively determined not to pursue the matter of § 1927
sanctions further.” According to Mr. Fitzpatrick, Defendants’ filing on February
14, 2012, was the “first indication in many years” that the ALDOT still was
pursuing its interest in the assessment of § 1927 sanctions against Plaintiffs’
counsel. (Doc. # 8800, at 2.) At the status conference held on March 22, 2012,
Defendants’ new counsel8 did not question the veracity of Mr. Fitzpatrick’s
representation but nonetheless emphasized the absence of a writing or open-court
admission in which Defendants had abandoned their pursuit of § 1927 sanctions.
While this criticism is noted, the court is persuaded that Mr. Fitzpatrick’s
representation amounts to sufficient evidence of the ALDOT’s abandonment,
absent authority from Defendants demonstrating the contrary.

Moreover,

Defendants overlook that a waiver can be implied by conduct. Cf. Edwards v.
Allied Home Mortg. Capital Corp., 962 So. 2d 194, 209 (Ala. 2007) (“A party’s
intent to waive a right may be found from conduct that is inconsistent with the
assertion of that right.”). And, in this instance, the ALDOT’s silence speaks louder
than words.
The ALDOT’s conduct is its inaction in the district court for more than a
decade (ten years, three months, and twenty-two days to be exact). Namely, from
October 24, 2001 – the date the second panel dismissed the sanctions appeal – to
8

Defendants reignited the § 1927 sanctions issue with new counsel, who made her first
appearance in this action on January 9, 2012. (Doc. # 8769.)
20

February 14, 2012, there is not a single filing in the district court’s record from the
ALDOT requesting any form of relief on the § 1927 sanctions issue.9 This lengthy
period of record silence, coupled with former counsel for Defendants’ notification
to Mr. Fitzpatrick of the ALDOT’s decision not to continue to advocate for the
imposition of § 1927 sanctions, is inconsistent with Defendants’ present position
and indicates an abandonment of any right Defendants may have had in having
§ 1927 sanctions assessed against counsel for Plaintiffs.
At the very least, Defendants’ conduct before the Eleventh Circuit amounts
to a waiver of any right to argue that resolution of the § 1927 sanctions issue is for
the district court. Back in October 2001, during the sanctions appeal, Defendants
argued to the Eleventh Circuit that “it could not be more clear that this Court [the
Eleventh Circuit] intended to reserve to itself the final decision as to imposition of
sanctions” under § 1927 against Plaintiffs’ counsel, and that the mandate “plainly
indicated an intent for this Court [the Eleventh Circuit] to make the final
determination as to sanctions.” (Doc. # 8805-1, at 32.) Defendants posited that
Judge DeMent had complied fully with the mandate, that the matter now was in the
hands of the first panel, and that the first panel had retained jurisdiction to decide
the sanctions issue. Then, again in July 2003, in their response to the Eleventh
Circuit Clerk’s letter inquiring about the status of the § 1927 sanctions issue,
9

As of July 16, 2014, there are 9,045 filing entries in the district court in Reynolds. Since
the sanctions issue was raised by the circuit court in 2000, there have been 4,655 filings.
21

Defendants similarly asserted that, if based on the certified record from the district
court, the Eleventh Circuit “determines that sanctions are warranted, it presumably
will establish procedures for such submissions or remand the case for further
proceedings in that regard.”

(Def.’s Letter, at 6.)

Against the backdrop of

Defendants’ conduct in the Eleventh Circuit, their more-than-a-decade of silence in
the district court similarly indicates abandonment of any right Defendants had to
advocate for the resolution of the § 1927 sanctions by the district court.
Defendants’ conduct before the Eleventh Circuit also raises judicial estoppel
concerns insofar as Defendants contend that there is more for the district court to
do on the § 1927 sanctions issue. Defendants argued during the sanctions appeal
that the Eleventh Circuit’s mandate implicitly reserved jurisdiction over the final
§ 1927 sanctions decision and that the “mandate . . . did not direct the district court
to determine whether sanctions were appropriate, much less to determine the
amount of sanctions.” (Doc. # 8805-1, at 22, 27) Defendants’ arguments, at least
to some degree, garnered the support of the second panel in that Defendants were
able to achieve the result for which they were advocating, namely, a dismissal of
the sanctions appeal on grounds that Judge DeMent’s March 28, 2001 Order was
not final or appealable. (Doc. # 5343.) For more than a decade, Defendants have
not challenged Judge DeMent’s March 28, 2001 ruling, including in their
arguments to the circuit. But now, contrary to the position they advocated in 2001
22

and 2003 before the circuit, Defendants argue that this court must forge ahead and
resolve the sanctions issue once and for all.

(See Doc. # 8791, at 8–9.)

Defendants’ current position clearly is inconsistent with the position Defendants
advocated on appeal.
Defendants do not dispute that their litigation position has changed, but at
the March 2012 status conference, they offered three justifications for that change.
First, Defendants argue that a decade ago they had a “good relationship” with
counsel for the Adams Intervenors and that the Adams Intervenors had been
advocating for the award of attorney’s fees as sanctions against Plaintiffs’ counsel,
even though they had been made whole on those fees. Defendants point out that
the relationship is not as cooperative now that they are no longer paying the Adams
Intervenors’ attorneys’ fees. Hence, Defendants contend that there is no longer an
Adams advocate working on their behalf for the imposition of sanctions.
Defendants’ argument, however, represents the type of change in conduct that
judicial estoppel was designed to prevent – a change in position “according to the
exigencies of the moment.” New Hampshire, 532 U.S. at 750. That things have
changed does not provide adequate grounds to avert the application of judicial
estoppel.
Second, Defendants justify their change in position on grounds that there has
been a “lack of clarity” about what the first panel’s mandate meant, but that the
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July 2003 letter from the Eleventh Circuit Clerk made it “absolutely clear” that the
district court, at the very least, was supposed to have a hearing on the § 1927
sanctions issue and that the Eleventh Circuit’s return of the record to the district
court on January 31, 2005 was a “second remand.” They further assert that,
“[d]espite this second Remand, neither Judge DeMent, nor any other judge, took
any further action to resolve the issue relating to the appropriateness of sanctions
against Plaintiffs’ counsel.” (Doc. # 8791 ¶ 31.)

But Defendants’ argument

assumes too much.
The Eleventh Circuit Clerk’s July 2003 letter was not addressed to the
district court, but rather to the parties and counsel, and there is no indication from
the face of the letter that a copy of the letter was provided to the district court.
Moreover, the fact of the record’s return to the district court in 2005 merely is
contained in a docket notation in the district court’s electronic files. The entirety
of the docket notation, which was entered by a clerk’s office employee, reads
“Appeal Record from USCA re 97-6347-HH (ydw).” There is no judgment, no
opinion, no reference to the July 2003 letter, no pronouncement that Judge DeMent
violated the first panel’s mandate in 2001, and simply no directive at all. Cf. Fed.
R. App. P. 41 (defining the mandate). There is nothing – set out formally or
informally – indicating that the Eleventh Circuit expected the district court to do or
not to do something after the return of the record in 2005.
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Defendants’ present

characterization also begs the question of why they waited more than seven years –
from January 2005 to March 2012 – to inform the district court of their belief that
the January 2005 return of the record was a second remand requiring the district
court to hold a hearing and resolve the § 1927 sanctions issue.
Moreover, although Defendants’ position that there has been a lack of clarity
during these proceedings about what “the Eleventh Circuit intended to happen” is
understandable, it is notable that Defendants have not contended that they ever
sought clarification from the Eleventh Circuit. Cf. U.S. Cartridge Co. v. Powell,
186 F.2d 611, 614 (8th Cir. 1951) (“It was not until [remand] that the possible
ambiguity of the opinion became a probable source of difficulty in the retrial of the
cause. It was then appropriate . . . that request for clarification be made.”); Dilley
v. Alexander, 627 F.2d 407, 410–413 (D.C. Cir. 1980) (“A motion for clarification
was the proper means to invoke the court’s power to recall its mandate for the
purpose of making clear what relief it had intended to award.”). Nor is there any
indication in the record that Defendants argued to the Eleventh Circuit that Judge
DeMent misinterpreted its mandate. Cf. Piambino v. Bailey, 757 F.2d 1112, 1120
(11th Cir. 1985) (“If the trial court fails fully to implement the mandate, the
aggrieved party may apply to the appellate court for enforcement, by petitioning
for a writ of mandamus.”).

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Third, Defendants contend that they have brought the issue of the unresolved
§ 1927 sanctions matter to the attention of Judge Thompson by listing the matter as
an agenda item for discussion at the regularly scheduled status conferences that
Judge Thompson held for a period of years in this case. (See, e.g., Doc. # 6652.)
They filed no motion with Judge Thompson requesting any relief, however; and
even if they had, the Eleventh Circuit expressly has forbidden Judge Thompson
from hearing the § 1927 sanctions issue. See Reynolds, 207 F.3d at 1301–02
(“[O]n receipt of the mandate, the chief judge of the Middle District of Alabama
will assign the case to himself or another district judge (other than Judge
Thompson) for the purpose of enabling plaintiffs’ counsel to show cause why
section 1927 sanctions should not be awarded to the Adams Intervenors.”
(emphasis added)). Defendants made no request for relief to the undersigned until
February 14, 2012, and their request comes too late for the reasons explained.
Finally, and simply, laches also is a strong conceptual fit for these facts.
Clearly, there has been delay, and no compelling excuse is apparent. Even if
Defendants are given the benefit of the doubt on their excuses, the third
consideration, undue prejudice, is the deciding factor. Judicial estoppel and laches
both include this element. Assessing undue prejudice is difficult on these facts
because of the abundance of prejudice. No doubt, the resumption of sanctions
proceedings in the district court after the matter has lain dormant for more than
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eleven years will be hampered by stale evidence and faded memories, thereby
prejudicing counsel for Plaintiffs’ ability to defend themselves. On the other hand,
the court is sensitive to the fact that the Eleventh Circuit sua sponte raised the
§ 1927 sanctions issue, thereby creating an inchoate, or at least potential, right to
recovery.

Yet neither the district court nor the Eleventh Circuit has decided

whether Plaintiffs’ counsel should be assessed § 1927 sanctions. In other words, if
the § 1927 sanctions issue ever is to be resolved, prejudice is unavoidable.
After careful consideration of the equities, on this record – where
Defendants waited more than ten years after the second panel’s 2001 dismissal of
the sanctions appeal to take any action on the § 1927 sanctions issue in the district
court, where Defendants advanced arguments to the Eleventh Circuit that are
directly contrary to the ones they now make to the district court, and where
Defendants have failed to formally intervene as suggested by Judge DeMent – the
court declines to undo Judge DeMent’s March 28, 2001 ruling denying an
evidentiary hearing and finding that the final decision on the § 1927 sanctions
matter was reserved for the circuit. The court also declines to reconsider Judge
DeMent’s March 28, 2001 ruling without clear direction from either the first panel
or the second panel of the Eleventh Circuit that the district court is in violation of
the mandate. As Defendants themselves argued before the Eleventh Circuit in
2001, “[e]ven if th[e Eleventh Circuit] had divested itself of jurisdiction over the
27

sanctions issue, and Judge DeMent’s order certifying the evidentiary record was
therefore ineffective, appeal of the order would still have to wait final resolution of
all other issues in this case.”

(Doc. # 8805-1, at 20 (citing Cunningham v.

Hamilton Cnty., 527 U.S. 198 (1999).)
There is one final matter to address. At the March 2012 status conference,
the ALDOT requested the ability to be heard in any § 1927 sanctions proceedings
on grounds that it, rather than the Adams Intervenors, is the real party in interest.
(See Doc. # 8791, at 9.) In 2001, Judge DeMent denied the ALDOT’s motion to
intervene and concluded that the ALDOT “must address the United States Court of
Appeals for the Eleventh Circuit with its request to intervene.” (Doc. # 4746.)
The ALDOT has not contended in these proceedings that it ever made such a
request with the Eleventh Circuit, and that ruling by Judge DeMent also will not be
revisited by this court. From aught that appears, the ALDOT again will have to
wait until final disposition of the Reynolds case, which to date remains pending.
See generally 5 Am. Jur. 2d Appellate Review § 234 (2014) (“One who seeks to
intervene, but is denied leave to do so by the trial court, has standing to appeal
such denial, or, according to another view, from the final judgment entered in the
case in which he or she sought to intervene.”). Accordingly, Defendants’ request
for relief from the district court on the § 1927 sanctions issue is due to be denied.

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IV. CONCLUSION
The sanctions corpse is buried under an insurmountable pile of days,
doctrines, and delays. The equities – notably those of waiver, judicial estoppel,
and laches, whether considered individually or cumulatively – preclude Defendants
from exhuming the § 1927 sanctions dispute in the district court after more than a
decade of inaction. Accordingly, it is ORDERED that Defendants’ request that the
district court take further action on the § 1927 sanctions issue (Doc. # 8791) is
DENIED.
DONE this 16th day of July, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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