* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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 *-2-

Before EBEL , MURPHY , and McCONNELL , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T his 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, pursu ant to 28 U.S.C. § 1927 and federal common law. The grant or denial of a motio n 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, an d attorney’s fees on “[a]ny attorney . . . who . . . multiplies the proceedings in any case unreasonably and vexatiously.” This Court has held that sanctions a re appropriate under §1927 when the attorney’s conduct manifests an intentiona l 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 o bjective bad faith. Under this standard, sanctions are appropriate when: (1) an attorney attempts to mislead the-3-

court; (2) an attorney intentionally acts without aplausible basis; (3) the entire course of proceedings is unwarranted; or (4) certai n discovery is substantially unjustified and interposed for the purposes of hara ssment, 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 Sup reme Court, “a court may assess attorney’s fees when a party has “ ‘acted in bad fa ith, 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 s uccessful litigation to compel the Denver Health and Hospital Authority andother Defendants (collectively, “Denver Health”) to release medical records pertaining to the death of an indigent patient. In that litigation, DenverHealth maintained that the records were subject to the Confidentiality of Alco hol and Drug Abuse Patient Records Act, 42 U.S.C. §290dd-2, and attendant regu lations. 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, Denve r 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.-4-

The district court denied the motion. The court st ated that it “specifically finds that Defendants’ attorneys acted in an object ively reasonable manner throughout the pendency of the case before the dist rict court.” The court further stated that “Plaintiff has not presented any eviden ce 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 th at the Center had “not demonstrated that Defendants’ attorneys acted in a manner evidencing serious and standard disregard for the orderly administration o f justice.” Because the Center raises substantially the same accusations of misrep resentation and baseless assertion against Defendants and their counsel, the se 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 Cente r’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 fin dings of fact as to each of the factors relevant to sanctions in our case law. Tho se findings were directly contrary to the Center’s contentions. We have care fully reviewed the record and find no basis for disturbing the district court’s j udgment.-5-

The principal issue in the underlying litigation wa s 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 interpretatio n of the regulations was foreclosed by regulatory changes specifically desig ned 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 re vised rule, including the standards applicable to emergency rooms. Their pos ition was that even after the changes, their emergency room still qualified as a “program.” This Court deemed the question substantial enough to warrant oral arg ument 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 pos ition was frivolous. Indeed, Denver Health prevailed before both the Magistrate Judge and the district court, even after the Center made the very argument that s upposedly rendered Defendants’ position unsupportable. It is no doubt true that many litigants believe that their opponents needlessly prolong the case, or that their opponent s’ 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 v igorous presentation of-6-

competing legal interpretations, and many an argume nt thought hopeless by some has prevailed in the end. Of course, there is a l ine between vigorous presentation and deceptive misrepresentation; parties are admoni shed to disclose all relevant law to the courts, even when the law does not suppo rt their position. But Appellant’s many complaints about Denver Health’s l itigation tactics are singularly unpersuasive, and provide no reason to o verturn the district court’s conclusion that Defendants and their counsel stayedwithin the bounds of permissible advocacy.

The order of the United States District Court for t he District of Colorado denying Appellant’s motions for sanctions is AFFIRMED

. Entered for the Court,

Michael W. McConnell Circuit Judge