*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

FEB 25 2004

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CENTER FOR LEGAL ADVOCACY,

doing business as the Legal Center for

People with Disabilities and Older

People, also known as The Legal

Center, Colorado’s Protection and

Advocacy System, P&A System,

Plaintiff-Appellant,

v.

MICHAEL EARNEST, M.D., in his

official capacity as Medical Director

of Quality Review and Improvement;

PATRICIA GABOW, M.D., in her

official capacity as Medical Director

and Chief Executive Officer;

DENVER HEALTH AND HOSPITAL

AUTHORITY, also known as DHHA,

doing business as Denver Health

Medical Center, also known as

DHMC,

Defendants-Appellees.

 

No. 03-1390

District of Colorado

(D.C. No. 01-WY-642-CB (MJW))

ORDER AND JUDGMENT *
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Before EBEL , MURPHY , and McCONNELL , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is

therefore ordered submitted without oral argument.

Appellant Center for Legal Advocacy (the “Center”) appeals the district

court’s denial of sanctions against Defendants Dr. Michael Earnest and Dr.

Patricia Gabow and Defendants’ legal counsel, pursuant to 28 U.S.C. § 1927 and

federal common law. The grant or denial of a motion for sanctions is reviewed

for abuse of discretion, with legal questions reviewed de novo. Griffen v. City of

Oklahoma City , 3 F.3d 336, 342 (10th Cir. 1993); Morganroth & Morganroth v.

Delorean , 213 F.3d 1301, 1317 (10th Cir. 2000).

28 U.S.C. § 1927 permits, but does not require, the district court to impose

sanctions in the form of excess costs, expenses, and attorney’s fees on “[a]ny

attorney . . . who . . . multiplies the proceedings in any case unreasonably and

vexatiously.” This Court has held that sanctions are appropriate under §1927

when the attorney’s conduct manifests an intentional or reckless disregard for his

or her duties to the court. Miera v. Dairyland Ins. Co. , 143 F.3d 1337, 1342 (10th

Cir. 1998). The standard to be applied is one of objective bad faith. Under this

standard, sanctions are appropriate when: (1) an attorney attempts to mislead the
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court; (2) an attorney intentionally acts without a plausible basis; (3) the entire

course of proceedings is unwarranted; or (4) certain discovery is substantially

unjustified and interposed for the purposes of harassment, unnecessary delay, and

to increase the costs of litigation. Id. The standards that apply to a court’s

decision to exercise its inherent power to sanction an attorney or a party before it

are not materially different. According to the Supreme Court, “a court may assess

attorney’s fees when a party has “ ‘acted in bad faith, vexatiously, wantonly, or

for oppressive reasons.’” Chambers v. NASCO, Inc. , 501 U.S. 32, 45-46 (1991).

The Center seeks sanctions in connection with its successful litigation to

compel the Denver Health and Hospital Authority and other Defendants

(collectively, “Denver Health”) to release medical records pertaining to the death

of an indigent patient. In that litigation, Denver Health maintained that the

records were subject to the Confidentiality of Alcohol and Drug Abuse Patient

Records Act, 42 U.S.C. §290dd-2, and attendant regulations. The district court

agreed with Denver Health, but this Court reversed. Ctr. for Legal Advocacy v.

Earnest , 320 F.3d 1107 (10th Cir. 2003). On remand, Denver Health confessed

judgment, and released all of the documents to the Center. The Center then

moved for sanctions, contending that Denver Health conducted the litigation in

bad faith and for dilatory purposes.
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The district court denied the motion. The court stated that it “specifically

finds that Defendants’ attorneys acted in an objectively reasonable manner

throughout the pendency of the case before the district court.” The court further

stated that “Plaintiff has not presented any evidence that Defendants’ attorney

misled the Court or acted without a plausible basis, that the entire course of

proceedings was unwarranted, or that Defendants’ attorneys engaged in dilatory

or vexatious tactics.” Finally, the court found that the Center had “not

demonstrated that Defendants’ attorneys acted in a manner evidencing serious and

standard disregard for the orderly administration of justice.” Because the Center

raises substantially the same accusations of misrepresentation and baseless

assertion against Defendants and their counsel, these conclusions are equally

applicable to Drs. Earnest and Gabow.

The Center does not assert that the district court applied an incorrect legal

standard. There is obviously no merit in the Center’s claim that the district court

made no findings of fact (Appellant’s Br. 26). As the preceding summary

indicates, the district court specifically made findings of fact as to each of the

factors relevant to sanctions in our case law. Those findings were directly

contrary to the Center’s contentions. We have carefully reviewed the record and

find no basis for disturbing the district court’s judgment. 
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The principal issue in the underlying litigation was whether Denver Health

constituted a “program” within the meaning of 42 C.F.R. § 2.11. See Ctr. for

Legal Advocacy , 320 F.3d at 1109-10. The Center argues that the Defendants

wrongly failed to disclose that their interpretation of the regulations was

foreclosed by regulatory changes specifically designed to limit the circumstances

under which an emergency room could be considered a “program.” Defendants

did not stress the history behind this change, but did include in their submissions

to the district court accurate statements of the revised rule, including the

standards applicable to emergency rooms. Their position was that even after the

changes, their emergency room still qualified as a “program.” This Court deemed

the question substantial enough to warrant oral argument and decided the case in

a published opinion. At no point in the course of the litigation did this Court or

the district court suggest that Denver Health’s position was frivolous. Indeed,

Denver Health prevailed before both the Magistrate Judge and the district court,

even after the Center made the very argument that supposedly rendered

Defendants’ position unsupportable.

It is no doubt true that many litigants believe that their opponents

needlessly prolong the case, or that their opponents’ position was “unsupported by

law from its inception” or “untenable.” Appellant’s Br. 28. That does not make

it sanctionable. Our legal system thrives on the vigorous presentation of
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competing legal interpretations, and many an argument thought hopeless by some

has prevailed in the end. Of course, there is a line between vigorous presentation

and deceptive misrepresentation; parties are admonished to disclose all relevant

law to the courts, even when the law does not support their position. But

Appellant’s many complaints about Denver Health’s litigation tactics are

singularly unpersuasive, and provide no reason to overturn the district court’s

conclusion that Defendants and their counsel stayed within the bounds of

permissible advocacy. 

The order of the United States District Court for the District of Colorado

denying Appellant’s motions for sanctions is AFFIRMED .

Entered for the Court, 

Michael W. McConnell

Circuit Judge