                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0298n.06

                                        Nos. 19-5238/5789

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                  FILED
                                                                            May 28, 2020
KATORIA S. WILLIAMS and DEMETRI M.                    )                 DEBORAH S. HUNT, Clerk
FAULKNER,                                             )
                                                      )
       Plaintiffs-Appellants,
                                                      )        ON APPEAL FROM THE
                                                      )        UNITED STATES DISTRICT
LUCINDA JONES and VALERIE V. VIE,
                                                      )        COURT FOR THE WESTERN
       Interested Parties-Appellants,                 )        DISTRICT OF TENNESSEE
                                                      )
       v.                                             )
                                                      )
SHELBY COUNTY SCHOOL SYSTEM, et al.,                  )
       Defendants-Appellees,                          )
                                                      )
STATE OF TENNESSEE,                                   )
                                                      )
       Intervenor-Appellee.
                                                      )


BEFORE: GIBBONS, McKEAGUE, and WHITE, Circuit Judges.

       PER CURIAM. Before us is defendant-appellee Marjorie Douglas’s motion for fees and

costs as a sanction against plaintiffs-appellants Katoria Williams and Demetri Faulkner, as well as

their attorneys Lucinda Jones, Valerie Vie, and Darrell O’Neal. In 2017, Williams and Faulkner

filed suit against the Shelby County School System and its employee, Douglas, for alleged

violations of federal and state law stemming from the termination of their employment contracts.

Williams v. Shelby Cty. Sch. Sys., Nos. 19-5238/5789, 2020 WL 1190433, at *1 (6th Cir. Mar. 12,

2020). Williams and Faulkner’s complaint, however, was filed four years after their contracts
Nos. 19-5238/5789, Williams v. Shelby Cty. Sch. Sys.


were terminated, meaning that their claims were barred by various statutes of limitations. Id. As

a result, the district court dismissed the complaint and awarded fees against the plaintiffs and their

trial attorneys, Jones and Vie, as a sanction. Id.

       Douglas then requested fees for fees from the district court—that is, attorney’s fees

incurred while preparing the original motion for fees. Id. After the fees-for-fees motion, but before

the district court had ruled on the motion, Jones and Vie—the two trial attorneys—filed a timely

notice of appeal challenging the sanctions order as it applied to them. Id. Shortly thereafter, and

more than 30 days after its original sanctions order, the district court granted the fees-for-fees

motion. Id. Only then did Williams and Faulkner—now represented by substitute counsel

O’Neal—file a notice of appeal challenging the original sanctions order. Id. Neither the plaintiffs

nor their attorneys appealed the dismissal of the underlying claims. See id.

       We affirmed the district court. First, we dismissed Williams and Faulkner’s appeal as

untimely, explaining that it was filed more than 30 days after the original sanctions order and did

not include a challenge to the later fees-for-fees order. Id. at *1–2. Second, we upheld the award

of fees as a sanction against Jones and Vie. Id. at *2–3. We reasoned that Jones and Vie’s

argument that Douglas might have committed continuing violations of Williams and Faulkner’s

rights—which would have revived their claims—was “leaky at best, frivolous at worst.” Id. at *2

(quoting Carter v. Hickory Healthcare Inc., 905 F.3d 963, 969 (6th Cir. 2018)). Finally, we

declined to issue further sanctions against the plaintiffs or their attorneys because Douglas failed

to file a separate motion requesting appellate sanctions. Id. at *3 n.2.

       After we issued our decision, Douglas filed the instant motion requesting fees and costs as

a sanction for the conduct of plaintiffs and their attorneys on appeal. She argues that Williams,

Faulkner, and their appellate counsel, O’Neal, should be sanctioned for pursuing an “untimely and



                                                -2-
Nos. 19-5238/5789, Williams v. Shelby Cty. Sch. Sys.


frivolous appeal,” thereby “unreasonably and vexatiously” multiplying the proceedings. CA6 R.

23-2, Mot. for Sanctions, at 6. Douglas likewise argues that Jones and Vie “vexatiously and

needlessly multiplied the proceedings” by pursuing their own frivolous appeal. Id. at 5.

       We may impose sanctions for conduct on appeal pursuant to three grants of authority:

Federal Rule of Appellate Procedure 38; 28 U.S.C. § 1912; and 28 U.S.C. § 1297. As we have

explained, the standard under each provision is similar:

       [Rule] 38 provides for sanctions “[i]f a court of appeals determines that an appeal
       is frivolous.” “Sanctions under [Rule 38] are ‘appropriate when an appeal is wholly
       without merit and when the appellant's arguments essentially had no reasonable
       expectation of altering the district court's judgment based on law or fact.’” Scherer
       v. JP Morgan Chase & Co., 508 F. App’x 429, 439 (6th Cir. 2012) (quoting B & H
       Med., L.L.C. v. ABP Admin., Inc., 526 F.3d 257, 270 (6th Cir. 2008)). Although a
       finding of bad faith is not required for imposition of Rule 38 sanctions, “we will
       usually impose Rule 38 . . . sanctions only where there was some improper purpose,
       such as harassment or delay, behind the appeal.” Barney v. Holzer Clinic, Ltd.,
       110 F.3d 1207, 1212 (6th Cir. 1997). [Section] 1912 provides that “[w]here a
       judgment is affirmed by the Supreme Court or a court of appeals, the court in its
       discretion may adjudge to the prevailing party just damages for his delay, and single
       or double costs.” It “is ‘similar’” in application to Rule 38, Kempter v. Mich. Bell
       Tel. Co., 534 F. App’x 487, 493 (6th Cir. 2013) (quoting Waeschle v. Dragovic,
       687 F.3d 292, 296 (6th Cir. 2012)), cert. denied, 134 S. Ct. 1764 (2014). Finally,
       § 1927 declares that “[a]ny attorney . . . who so multiplies the proceedings in any
       case unreasonably and vexatiously may be required by the court to satisfy
       personally the excess costs, expenses, and attorneys’ fees reasonably incurred
       because of such conduct.” Section 1927 allows for sanctions when the “attorney
       knows or reasonably should know that a claim pursued is frivolous,” Scherer, 508
       F. App’x at 439 (quoting Tareco Prop., Inc. v. Morriss, 321 F.3d 545, 550 (6th Cir.
       2003)). “Section 1927 sanctions may be imposed without a finding that the lawyer
       subjectively knew that his conduct was inappropriate,” but “the conduct must
       exceed ‘simple inadvertence or negligence that frustrates the trial judge.’” Id.
       (quoting Ridder v. City of Springfield, 109 F.3d 288, 298 (6th Cir. 1997)).

Hogan v. Jacobson, 823 F.3d 872, 886 (6th Cir. 2016).

       We begin with Williams and Faulkner. Although a party may be sanctioned under Rule 38

or § 1912, Douglas offers no evidence that Williams and Faulkner harbored an improper motive,

such as the intent to harass or cause delay. Barney, 110 F.3d at 1212. Nor is there any evidence



                                               -3-
Nos. 19-5238/5789, Williams v. Shelby Cty. Sch. Sys.


that they pressured O’Neal into filing an appeal that they knew to be time barred. We thus find

that William and Faulkner’s conduct is not sanctionable.

       Similarly, although O’Neal was responsible for filing the untimely appeal on behalf of

Williams and Faulkner, Douglas offers little more than the conclusory allegation that O’Neal

should have known that the appeal was untimely. It is not enough, however, that we ultimately

found the appeal to be untimely. See, e.g., Talamini v. Allstate Ins. Co., 470 U.S. 1067, 1071

(1985) (Stevens, J., concurring) (noting that unmeritorious claims do not automatically warrant

sanctions). And no case had directly rejected the argument that a fees-for-fees motion could reset

the clock for an appeal of post-judgment sanctions. Although our reasoning in JPMorgan Chase

Bank, N.A. v. Winget, 920 F.3d 1103 (6th Cir. 2019), makes clear that an original sanctions order—

not a fees-for-fees order—would start the clock on such an appeal, Winget had yet to be decided

when Douglas filed her fees-for-fees motion.          We thus find that O’Neal’s conduct is not

sanctionable.

       Jones and Vie’s conduct merits closer scrutiny. We are mindful that sanctions against

losing civil-rights plaintiffs are disfavored and should only be imposed in “truly egregious cases

of misconduct.” Ridder v. City of Springfield, 109 F.3d 288, 299 (6th Cir. 1997) (quoting Jones

v. Continental Corp., 789 F.2d 1225, 1232 (6th Cir. 1997)). Jones and Vie’s challenged conduct,

however, is largely unrelated to the nature of the claims they prosecuted. See, e.g., id. (pointing

to the “intrinsic” difficulty of collecting evidentiary support prior to commencing a civil-rights

action as one example of why we are reluctant to sanction such plaintiffs). They did not pursue a

novel theory of liability or attempt to meaningfully distinguish controlling precedent; rather, they

filed time-barred claims and then, on appeal, sought to lay responsibility at the feet of the district




                                                -4-
Nos. 19-5238/5789, Williams v. Shelby Cty. Sch. Sys.


court. Williams, 2020 WL 1190433, at *2–3. Jones and Vie should have known that blaming the

district court and repeating their most meritless arguments would fail.

       Some of Jones and Vie’s conduct is mitigated by the posture of their appeal. They did not

challenge the merits of the district court’s holding that the claims were time barred. They instead

challenged the district court’s order sanctioning them for filing the claims in the first place. That

is, Jones and Vie argued the reasonableness of their views—not whether those views were, in fact,

correct—and challenged the district court’s analysis. In doing so, they raised three semi-colorable

arguments. First, Jones and Vie maintained that the claim for inducement to breach of contract

was arguably subject to a six-year statute of limitations. Second, they challenged the district

court’s finding that the litigation was meant to “grind down” Douglas, highlighting the limited

nature of their discovery requests and motions practice. Finally, they argued that the district court

failed to make the necessary findings of discrete acts of vexatious conduct, citing caselaw to

support their argument. Although the law was “solidly against these new arguments,” they at least

evidence some bases upon which Jones and Vie might have believed that their appeal would gain

traction. Friedler v. Equitable Life Assurance Soc’y, 86 F. App’x 50, 57 (6th Cir. 2003).

       We exercise our discretion not to sanction Jones and Vie. Although their conduct was

unprofessional and serious enough to meet the standard for imposing sanctions, the deterrent and

compensatory purpose of sanctions is adequately served by the nearly $40,000 judgment against

them in the district court. This is especially so given that Douglas would have had to defend the

sanctions order anyway in Williams and Faulkner’s appeal. We believe that further sanctions

would serve no useful purpose. And when “no useful purpose” would be served by imposing

additional sanctions, we may “decline to impose” them. Flaherty v. Gas Research Inst., 31 F.3d

451, 459 (7th Cir. 1994); City of E. St. Louis v. Circuit Court for the Twentieth Judicial Circuit,



                                                -5-
Nos. 19-5238/5789, Williams v. Shelby Cty. Sch. Sys.


986 F.2d 1142, 1145 (7th Cir. 1993); cf. also Asberry v. United States Postal Serv., 692 F.2d 1378,

1382 (Fed. Cir. 1982) (“[W]e consider it appropriate under all the circumstances to remit the costs

and attorney’s fees imposed in this case.”). We thus decline to impose them here.

       The motion is denied.




                                               -6-
Nos. 19-5238/5789, Williams v. Shelby Cty. Sch. Sys.


       McKEAGUE, Circuit Judge, dissenting. I am in almost complete agreement with the

majority. On behalf of their clients, Lucinda Jones and Valerie Vie filed a lawsuit against Marjorie

Douglas, a Shelby County School System supervisor, well after all statutes of limitations expired.

“Maintaining a clearly time-barred lawsuit” is sanctionable. Carter v. Hickory Healthcare Inc.,

905 F.3d 963, 969 (6th Cir. 2018). But Jones and Vie had little to say for themselves before the

district court, which appropriately sanctioned them. Then Jones and Vie appealed, arguing what

little they said (and failed to say) was enough to save them from sanctions; they even argued the

district court should’ve kept the bill low for them. We rejected these arguments. Williams v.

Shelby Cty. Sch. Sys., Nos. 19-5238/5789, 2020 WL 1190433 (6th Cir. Mar. 12, 2020). And my

colleagues rightly recognize that Jones and Vie’s frivolous appeal is itself sanctionable.

       I would, however, award monetary sanctions against Jones and Vie under 28 U.S.C.

§ 1927. No doubt the district court’s sanctions order, our opinion affirming that order, and the

majority’s opinion denying further sanctions have sent a strong message to Jones and Vie. But

there’s still a “useful purpose” in making them pay Douglas’s fees on appeal. Flaherty v. Gas

Research Inst., 31 F.3d 451, 459 (7th Cir. 1994). Namely, their conduct wasn’t victimless:

someone has to pay Douglas’s lawyers for hours billed on this frivolous appeal. If it’s the Shelby

County School System—really, the public—that pays, those thousands of taxpayer dollars are

better spent on students, teachers, and schools. The equitable thing to do would be to shield these

innocent stakeholders from the expense of Jones and Vie’s frivolous appeal. See Hamilton v. Boise

Cascade Exp., 519 F.3d 1197, 1205 (10th Cir. 2008) (“[T]he text of § 1927 . . . indicates a purpose

to compensate victims of abusive litigation practices, not to deter and punish offenders.”). If it’s

Douglas—the public servant—who pays, then she too deserves to be spared. See id.




                                                -7-
Nos. 19-5238/5789, Williams v. Shelby Cty. Sch. Sys.


       Because the majority declines to award fees to Douglas as a sanction against Jones and

Vie, I respectfully dissent.




                                             -8-
