Appeal from the United States District Court for the District of Columbia. (No. 96cv02094).
Before: Edwards, Rogers, and Roberts, Circuit Judges.
The opinion of the court was delivered by: Edwards, Circuit Judge
Appellant Roy W. Krieger represented American Airlines, Inc. ("American Airlines") in a jury trial on a tort claim brought by Appellee Christopher Manion. Krieger was sanctioned by the District Court for making statements during his closing argument that defied specific orders of the court. Krieger concedes that his conduct was sanctionable, but contests the amount of the sanctions awarded against him. Appellant submits that the sanction, ordered pursuant to 28 U.S.C. § 1927 (2000), includes components that are not compensable under the statute. Krieger principally contends that the District Court had no authority under § 1927 to award sanctions for matters that arose before the sanctionable conduct. He also challenges three other elements of the award. In defending the sanction, Manion argues that the District Court intended to rely on its inherent authority in addition to § 1927.
We find that the sanctions award was expressly ordered pursuant to § 1927, not the court's inherent authority. However, we do not reach Krieger's principal contention that matters arising prior to the sanctionable misconduct are not compensable under § 1927, because it was not properly raised below. Krieger did preserve three questions that warrant our attention: whether the § 1927 sanction appropriately included compensation relating to (1) Manion's time attending trial proceedings, (2) Krieger's interlocutory appeal, and (3) Manion's motion for sanctions before the District Court. We hold that litigation costs pertaining to Manion's time in court and the interlocutory appeal are not compensable under § 1927. The litigation costs relating to Manion's motion for sanctions arose in conjunction with his defense to Krieger's opposition to a motion for new trial, which is compensable. Because the costs relating to those two litigation items cannot be disaggregated, we affirm the judgment against Krieger on this point.
Manion sued American Airlines in tort alleging that he developed tinnitus because of excessive engine noise while taking an American Airlines flight from Chicago to Boston. Krieger served as counsel for American Airlines during the jury trial. It is not disputed that Krieger engaged in serious and sanctionable misconduct at closing argument. Manion objected to Krieger's argument and reserved the right to move for a mistrial. See Trial Tr. of 4/11/02 at 151, reprinted in Appellant's Appendix ("App.") 67. The jury returned a verdict for American Airlines, see Trial Tr. of 4/12/02 at 3-5, reprinted in App. 75-77, and Manion immediately moved for a mistrial. In the course of defending his motion for a new trial, Manion also argued for costs associated with the need for a new trial. See Trial Tr. of 4/12/02 at 7, App. 79. In a memorandum of law supporting his motion, Manion posited that Krieger's improper and prejudicial closing argument was grounds for a new trial and submitted that the court had authority under its inherent power and under § 1927 to award costs, including attorney's fees. See Pl.'s Legal Mem. Regarding Mot. for New Trial and Other Sanctions, 4/19/02, reprinted in App. 87-90. The District Court granted Manion's motion for a mistrial on August 1, 2002, and further ordered"in accordance with 28 U.S.C. § 1927, that plaintiff is awarded his costs, including reasonable attorney's fees, of the trial." Manion v. Am. Airlines, Inc., 215 F. Supp. 2d 90, 93 (D.D.C. 2002). In awarding Manion's costs, including reasonable attorney's fees, the court noted that"Defendant, in his supplemental opposition, makes no mention whatsoever of plaintiff's request for costs pursuant to 28 U.S.C. § 1927." Id. at 93 n.6.
On September 13, 2002, Manion filed a submission of fees, which included $41,375.00 for"Attorney Time," $3,656.85 for"Trial Expenses," and $2,600.00 for"Client Time." See Pl.'s Submission of Fees, 9/13/02, reprinted in App. 119-23. American Airlines petitioned for mandamus and noted an appeal in this court of the § 1927 sanction; Manion moved to dismiss the appeal and for sanctions for filing a frivolous appeal. We denied the petition for mandamus and dismissed the appeal because the challenged order did not conclusively determine the sanctions award as no amount had been set. We also denied the motion for sanctions. See In re Am. Airlines, Inc., No. 02-5340, Order (D.C. Cir. Dec. 12, 2002) (denying petition for mandamus); Manion v. Am. Airlines, Inc., No. 02-7110, Order, 2002 WL 31818922 (D.C. Cir. Dec. 12, 2002) (dismissing interlocutory appeal and denying motion for sanctions).
On December 19, 2002, Manion moved to liquidate, or set, the award of sanctions in the amount of $53,983.99, in accordance with the order of August 1, 2002. This amount included the initial submission of fees, as well as additional fees and expenses incurred in defending against American Airlines' attempt to vacate and appeal the August order. The additional litigation costs totaled $6,347.14, of which $3,217.50 pertained to defending against the interlocutory appeal and petition for mandamus. See Mot. to Liquidate Award of 8/1/02, 12/19/02, reprinted in App. 135-37. In an order filed September 29, 2003, the District Court ordered"for the reasons offered by Plaintiff, that Plaintiff's Motion to Liquidate Award of August 1, 2002 is GRANTED, and that Defendant and its counsel shall pay to Plaintiff the sum of $53,983.99, in accordance with the Court's August 1, 2002 Order...." Manion v. Am. Airlines, Inc., No. 96-2094, Order (D.D.C. Sept. 29, 2003), reprinted in App. 169. Manion has since settled his dispute with American Airlines. On this appeal, Krieger concedes that his conduct was sanctionable, but challenges the amount of the sanctions awarded against him.
As a preliminary matter, Manion submits that this court lacks jurisdiction over Krieger's appeal, because Krieger had filed a"petition to appeal" the sanctions award under Rule 5 of the Federal Rules of Appellate Procedure, rather than a"notice of appeal" pursuant to Rules 3 and 4. See Appellee's Br. 1-2. The argument is without merit. Krieger's filing was not a model of clarity, but it was sufficient to satisfy the requirements of Rule 3. See, e.g., Interstate Natural Gas Ass'n of Am. v. FERC, 756 F.2d 166, 170 (D.C. Cir. 1985) (per curiam) ("Federal appellate courts have broadly recognized that the filing of a paper substantially equivalent to one that formally inaugurates the normal review process may well suffice for that purpose.").
Rule 3 requires that a notice of appeal:
(A) specify the party or parties taking the appeal by naming each one in the caption ...