                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                            No. 10-15236            ELEVENTH CIRCUIT
                                        Non-Argument Calendar          AUGUST 23, 2011
                                      ________________________           JOHN LEY
                                                                          CLERK
                                D.C. Docket No. 4:10-cv-00038-CDL

JOSHUA ALFORD,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff - Appellant,

                                                versus

CONSOLIDATED GOVERNMENT OF COLUMBUS, GEORGIA,
a Municipal Corporation of the State of Georgia,
JIM WETHERINGTON,
Mayor, et al.,


llllllllllllllllllllllllllllllllllllllll                         Defendants - Appellees.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Georgia
                                 ________________________

                                           (August 23, 2011)

Before BARKETT, MARCUS and BLACK, Circuit Judges.

PER CURIAM:
       Joshua Alford, through counsel, appeals the district court’s dismissal for

failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), of his civil

rights Complaint, alleging violations of his constitutional rights to procedural due

process, substantive due process, and equal protection. In his Complaint, Alford

contended his constitutional rights were violated when his employment with the

Consolidated Government of Columbus, Georgia, was terminated for allegedly

viewing pornographic and obscene materials at work, while other municipal

employees were not disciplined for similar conduct. Alford asserts several issues

on appeal, which we address in turn. The Appellees have moved for sanctions

against Alford and his attorney for pursuing a frivolous appeal. After review,1 we

affirm the district court.

                                                 I.

       Alford initially contends the district court erred in failing to properly review

his claim for a violation of procedural due process. Specifically, he asserts the

court’s procedural due process analysis only addressed the number of members of

the Columbus Personnel Review Board present at his post-termination hearing,



       1
           We review de novo the grant of a motion to dismiss under Rule 12(b)(6) for failure to
state a claim, accepting the factual allegations in the complaint as true and construing them in the
light most favorable to the non-moving party. Edwards v. Prime, Inc., 602 F.3d 1276, 1291
(11th Cir. 2010).

                                                 2
and not the additional allegations or issues identified in his counseled Complaint

under the rubric of his substantive due process claim. Relying on our decision in

McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994), Alford maintains the district

court was obliged to review all allegations of due process issues, including those

made in connection with his substantive due process claim.

       Pursuant to Federal Rule of Civil Procedure 8(a)(2), a complaint must

contain “a short and plain statement of the claim showing that the pleader is

entitled to relief, in order to give the defendant fair notice of what the claim is and

the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (quotations and ellipses omitted). Although a complaint attacked under

Rule 12(b)(6) does not need detailed factual allegations, a plaintiff’s obligation to

provide the grounds of his entitlement to relief requires sufficient allegations to

raise a right to relief above the speculative level. Id. (quotations and alterations

omitted).

      Federal courts generally abide by the “principle of party presentation,”

relying “on the parties to frame the issues for decision and assign to courts the role

of neutral arbiter of matters the parties present.” Greenlaw v. United States, 554

U.S. 237, 243 (2008). As the Supreme Court has emphasized, “our adversary

system is designed around the premise that the parties know what is best for them,

                                           3
and are responsible for advancing the facts and arguments entitling them to relief.”

Id. To the extent that courts have varied from this general principle, they usually

have done so in order to protect the rights of pro se litigants. Id. at 244-45. Even

so, while pro se pleadings are liberally construed, “this leniency does not give a

court license to serve as de facto counsel for a party or to rewrite an otherwise

deficient pleading in order to sustain an action.” GJR Investments, Inc. v. Cnty. of

Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (internal citation omitted),

overruled on other grounds as recognized in Randall v. Scott, 610 F.3d 701, 706

(11th Cir. 2010). This principle is particularly true where a party is represented by

counsel, who does not enjoy the leniency afforded pro se litigants. See id.

      Pursuant to Rule 8(a)(2), as well as the general principle of party

representation, Alford and his attorney were obligated to set forth the specific

grounds supporting the procedural due process claim in order to give the

defendants fair notice of the nature of that claim. To the extent that Alford

intended to raise a procedural due process claim that transcended the adequacy of

the number of Board members present at his post-termination hearing, his

Complaint failed to indicate or provide fair notice of this fact. Moreover,

particularly as Alford was represented by counsel, the district court was not

required to liberally construe the procedural due process claim raised in his

                                          4
Complaint to encompass those allegations raised solely in connection with his

distinct substantive due process claim. Contrary to Alford’s suggestion, our

decision in McKinney v. Pate does not dictate a different conclusion or absolve

him and his attorney of an obligation to set forth the specific grounds upon which

the procedural due process claim rested. Accordingly, the district court did not err

in limiting its consideration of the procedural due process claim to the specific

grounds raised in Alford’s counseled Complaint.

                                         II.

      Alford next asserts the district court erroneously concluded the Supreme

Court’s decision in Engquist v. Oregon Department of Agriculture, 553 U.S. 591

(2008), precluded his equal protection claim. Specifically, he maintains

Engquist’s prohibition against class-of-one equal protection claims in the public

employment context is limited to at-will employees, and does not extend to merit

system or civil service employees.

      The Equal Protection Clause of the Fourteenth Amendment generally

requires government entities to treat similarly situated individuals alike. Campbell

v. Rainbow City, Ala., 434 F.3d 1306, 1313 (11th Cir. 2006). In a traditional

employment case brought under the Equal Protection Clause, an employee asserts

that he was discriminated against on account of his membership in an identifiable

                                          5
or protected class, such as race, religion, sex, or national origin. See Engquist, 553

U.S. at 594-95; Sweet v. Sec’y, Dep’t of Corr., 467 F.3d 1311, 1318-1319 (11th

Cir. 2006) (noting a plaintiff typically must allege that he was treated differently

“based on race, religion, national origin, or some other constitutionally protected

basis” to establish an equal protection claim). In a “class of one” equal protection

claim, however, a plaintiff does not allege discrimination against a protected class

or on account of membership in a particular group, but rather, asserts that he has

been treated differently from others similarly situated for arbitrary or irrational

reasons. See Engquist, 553 U.S. at 595-97; Leib v. Hillsborough Cnty. Pub.

Transp. Comm’n, 558 F.3d 1301, 1306 (11th Cir. 2009).

      In Engquist, a state employee alleged she had been effectively laid off for

“arbitrary, vindictive, and malicious reasons.” 553 U.S. at 594-95. Without

qualification or expressed limitation, the Supreme Court broadly held “such a

‘class-of-one’ theory of equal protection has no place in the public employment

context.” Id. at 594. The Court concluded that, while “the Equal Protection

Clause is implicated when the government makes class-based decisions in the

employment context, treating distinct groups of individuals categorically

differently,” it has no application when “government employers are alleged to

have made an individualized, subjective personnel decision in a seemingly

                                           6
arbitrary or irrational manner.” Id. at 605. Although the Supreme Court stated a

class-of-one theory of equal protection is contrary to the concept of at-will

employment, the Supreme Court further reasoned “a government’s decision to

limit the ability of public employers to fire at will is an act of legislative grace, not

constitutional mandate.” Id. at 606-07.

      Alford’s attempt to limit Engquist to at-will public employees is not

supported by the Supreme Court’s decision. Engquist holds that class-of-one

equal protection claims are categorically prohibited in the public employment

context, regardless of whether the aggrieved employee is an at-will employee or

subject to statutory protection from wrongful discharge. Moreover, the district

court correctly construed Alford’s equal protection claim as resting on a class-of-

one theory. Although Alford insisted that he was a member of the class of merit

system employees, he did not suggest that he was treated differently on account of

his membership in this particular group, or allege that similarly situated employees

outside the class of merit system employees were treated more favorably. To the

contrary, his contention was that he was arbitrarily treated differently than other

municipal employees. Accordingly, the district court properly concluded that

Alford’s class-of-one equal protection claim was foreclosed under Engquist.




                                            7
                                              III.

       The Appellees seek sanctions against Alford and his counsel, in the form of

attorneys’ fees, pursuant to 28 U.S.C. § 1927.2 They maintain that opposing

counsel, Ron Iddins, has knowingly and recklessly pursued frivolous claims on

appeal that unreasonably multiplied the proceedings.

       Pursuant to § 1927, federal courts, including courts of appeals, may require

any attorney “who so multiplies the proceedings in any case unreasonably and

vexatiously . . . to satisfy personally the excess costs, expenses, and attorneys’ fees

reasonably incurred because of such conduct.” 28 U.S.C. § 1927; see also

Reynolds v. Roberts, 207 F.3d 1288, 1302 (11th Cir. 2000) (concluding courts of

appeals have authority to award fees and costs under § 1927). To justify an award

of sanctions under § 1927, “an attorney must engage in unreasonable and

vexatious conduct; this conduct must multiply the proceedings; and the amount of

the sanction cannot exceed the costs occasioned by the objectionable conduct.”

Peer v. Lewis, 606 F.3d 1306, 1314 (11th Cir. 2010) (quotations omitted). “An


       2
          The Appellees also seek sanctions under Federal Rule of Appellate Procedure 38, and
have filed a corresponding motion for authorization to file an out-of-time request for Rule 38
sanctions. By separate order, we deny the appellees’ motion to seek Rule 38 sanctions out of
time, as they have failed to demonstrate a sufficient basis for excusing their failure to comply
with the applicable deadline. See 11th Cir. R. 38-1 (“Motions for damages and costs pursuant to
FRAP 38 must be filed no later than the filing of appellee’s brief.”). We also deny their motion
for sanctions to the extent that it relies on Rule 38 as untimely.

                                               8
attorney multiplies the proceedings unreasonably and vexatiously only when the

attorney’s conduct is so egregious that it is tantamount to bad faith.” Id.

(quotations omitted). The standard is an objective one, turning on how a

reasonable attorney would have acted under the circumstances rather than on the

particular attorney’s subjective intent. Norelus v. Denny’s Inc., 628 F.3d 1270,

1282 (11th Cir. 2010). A bad faith determination is warranted where an attorney

knowingly or recklessly pursues a frivolous claim. Amlong & Amlong, P.A. v.

Denny’s Inc., 500 F.3d 1230, 1242 (11th Cir. 2007). Something more than a lack

of merit or negligent conduct is needed to support the imposition of sanctions

under § 1927. Id.

      As previously stated, counsel’s contentions on appeal are wholly

unsupported by existing law. The challenge to the district court’s construction of

Alford’s procedural due process claim plainly conflicts with both the requirements

of Rule 8(a)(2) and the general principle of party presentation upon which our

adversary system is based, effectively seeking to absolve counsel of his own

shortcomings in drafting Alford’s Complaint. Moreover, counsel’s attempt to

limit the holding of Engquist is at least equally frivolous, unsupported by the

decision itself and other caselaw. Despite being previously admonished and

sanctioned by the district court for ignoring the clear holding of Engquist, counsel

                                          9
has insisted on pursuing an identical claim on appeal. Under the circumstances,

counsel has multiplied the proceedings by pursuing frivolous claims in an

objectively reckless manner. We therefore grant the Appellees’ motion for

sanctions to the extent that it relies on § 1927, and remand this case to the district

court for the limited purpose of determining the amount of attorneys’ fees

reasonably incurred by the appellees in litigating this appeal and to assess that

amount solely against the appellant’s attorney.

                                          IV.

      For the foregoing reasons, we AFFIRM the district court’s dismissal under

Rule 12(b)(6), AWARD SANCTIONS to the appellees pursuant to § 1927, and

REMAND the case to the district court to determine and assess a reasonable

amount of attorneys’ fees for the defense of this appeal.




                                          10
