                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 16 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



TANDA BROWN; BERTHA DUENAS;                      No. 09-15575
KEVIN NEELY; JANICE LEWIS;
DYRONN THEODORE; LASONIA                         D.C. Nos. 3:04-cv-00098-SI
WALKER; EDWARD ALVARADO;                                     3:04-cv-00099-SI
JOHN AZZAM; CHARLOTTE                                        3:03-cv-02659-SI
BOSWELL; PERNELL EVANS;
CHARLES GIBBS; MARIA MUNOZ;
LORE PAOGOFIE; CHRISTOPHER                       MEMORANDUM *
WILKERSON,

             Plaintiffs,

and

 WAUKEEN Q. MCCOY,

             Appellant,

  v.

FEDERAL EXPRESS CORPORATION, a
Delaware corporation, DBA Fedex
Express,

             Defendant - Appellee,

and



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
KAY MCKENZIE PARKER; ANGELA
ALIOTO, DBA Angela Alioto PLC;
CARLENE YOUNG,

               Lien Holders.




                     Appeal from the United States District Court
                       for the Northern District of California
                       Susan Illston, District Judge, Presiding

                         Argued and Submitted May 12, 2010
                              San Francisco, California

Before: REINHARDT, W. FLETCHER and N.R. SMITH, Circuit Judges.

      Appellant Waukeen McCoy, an attorney for plaintiffs in the underlying case,

appeals the district court’s denial of his attorney’s fees petition, its imposition of

the sanction of refusing to permit him to refile the petition, and its imposition of a

$25,000 monetary sanction. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We affirm the initial denial of the attorney’s fees petition, vacate the imposition of

both sanctions, and remand for further proceedings.

      After several of McCoy’s clients prevailed at trial, McCoy sought statutory

attorney’s fees pursuant to 42 U.S.C. § 1988. Defendant Federal Express Corp.

(“FedEx”) objected and sought sanctions, contending that there were deficiencies

in the fee petitions and possible fraud. After extensive proceedings before a


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Special Master and a hearing before the district court, the district court found that

McCoy had engaged in bad faith conduct by making repeated material

misrepresentations regarding his time records and how the fee petitions were

created, that he had failed to produce time records responsive to the Special

Master’s order, and that the fee petitions were inaccurate, unreliable, and contained

false entries. It concluded, because it “cannot rely with any confidence on Mr.

McCoy’s papers, declarations or arguments in support of his fee petitions,” that it

was appropriate to deny them in their entirety.

      We review the denial of attorney’s fees for abuse of discretion, and factual

findings for clear error. Saint John’s Organic Farm v. Gem County Mosquito

Abatement Dist., 574 F.3d 1054, 1058 (9th Cir. 2009). We affirm the denial of the

fee petitions. The district court was justified in initially denying the fee petitions

based on its factual findings about their inaccuracies and McCoy’s conduct in

creating them. These findings were well supported.

      In addition to striking the fee petitions, the district court held that McCoy’s

conduct merited sanctions. The district court imposed a $25,000 monetary

sanction. It also wrote that “one appropriate sanction is to deny the fee petitions

with prejudice—that is, strike them from the file without leave to refile or amend

them,” and imposed that sanction. We review a district court’s imposition of


                                            3
sanctions under its inherent power for abuse of discretion. Chambers v. NASCO,

Inc., 501 U.S. 32, 55 (1991). We review de novo “issues of law, including whether

the district court provided adequate process before imposing sanctions.” Lasar v.

Ford Motor Co., 399 F.3d 1101, 1109 (9th Cir. 2005).

      Inherent power sanctions require a level of procedural protections similar to

that required for contempt proceedings. Lasar, 399 F.3d at 1109 n.5; F.J.

Hanshaw Enters., Inc. v. Emerald River Dev., Inc., 244 F.3d 1128, 1137-39 (9th

Cir. 2001). The $25,000 sanction the district court imposed was criminal in nature.

It was intended to punish McCoy for his conduct and to vindicate the court’s

authority and integrity of the judicial process, not to compensate FedEx for losses

sustained or to coerce McCoy into compliance with a court order. See id. at 1137-

38. Nor was there an opportunity for McCoy to reduce or avoid the fine through

compliance. Id. Accordingly, the district court was obligated to provide McCoy

with appropriate procedural protections. See id. at 1139-41. Because these

protections were not provided, we vacate the $25,000 sanction, and remand to

provide the district court the opportunity to provide such protections in a sanctions

proceeding. See id. at 1141-42.

      We also vacate the sanction of striking the fee petitions “with prejudice” and

remand for further proceedings. The district court indicated that its denial of


                                          4
permission to McCoy to refile his request for attorney’s fees was a “sanction.” So

long as the district court’s decision is characterized as a sanction for past wrongful

conduct, McCoy is entitled to procedural protections comparable to those

applicable to the monetary sanction described above. Ordinarily, an attorney

should be allowed to refile a fee request after errors have been corrected. But in

appropriate circumstances a district court may deny permission to refile. For

example, a district court may, in its discretion, deny permission to refile when it is

evident from prior failures to correct errors that the fee applicant has been either

unable or unwilling to correct those errors. The district court is free, on remand, to

determine whether a denial of permission to refile may be justified on this basis

rather than justified as a sanction. If justified on this basis, the procedural

protections applicable to sanctions would of course not apply.

      We note that in deciding whether to deny McCoy permission to refile a

request for attorney’s fees, the district court may wish to consider the possible

effect of such a denial on McCoy’s clients. It is possible that if McCoy is unable to

collect statutory attorney’s fees from FedEx he may be able to collect contractual

attorney’s fees from the clients. In that event, it would be the clients rather than

McCoy who would suffer the adverse consequences of McCoy’s misconduct in




                                            5
seeking fees. We do not have any specific direction to the able district court. We

note only that this is a factor the court may wish to consider.

      AFFIRMED IN PART; VACATED AND REMANDED IN PART. Each

side shall bear its own costs on appeal.




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