                                                                 FILED
                                                     United States Court of Appeals
                        UNITED STATES COURT OF APPEALS       Tenth Circuit

                                FOR THE TENTH CIRCUIT                   March 19, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
MELISSA MELLOTT,

               Plaintiff,
                                                           No. 12-1323
v.                                            (D.C. No. 1:09-CV-02418-PAB-MJW)
                                                            (D. Colo.)
MSN COMMUNICATIONS, INC.,

               Defendant-Appellee,

-------------------------------------

JOHN OLSEN,

               Attorney-Appellant.


                                 ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, HOLLOWAY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.


       Attorney John Olsen represented Melissa Mellott in an

employment-discrimination action. Mr. Olsen’s support of Ms. Mellott’s egregious


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
conduct in that suit, which the district court thoroughly described in the order that we

have attached, led the court to impose a $25,000 sanction against Mr. Olsen under

Fed. R. Civ. P. 11. On appeal, however, we held that the Rule 11 sanction was

procedurally defective. Mellott v. MSN Commc’ns, Inc., No. 11-1478, 2012 WL

3008923, at *1-*2 (10th Cir. July 24, 2012) (unpublished). Although we

“sympathize[d] with the district court’s frustration with Mr. Olsen’s conduct,” id. at

*1, and we “considered affirming the sanction on other grounds,” id. at *2, ultimately

we left it to the district court to consider imposing a sanction under another authority,

such as the court’s inherent power.

      On remand, relying on its prior findings and conclusions, the district court

imposed on Mr. Olsen a $25,000 sanction under the court’s inherent power.

Mr. Olsen again appeals. We review an inherent-power sanction for abuse of

discretion. Chambers v. NASCO, Inc., 501 U.S. 32, 55 (1991).

      Mr. Olsen argues that the district court: (1) violated his right to due process

by not giving him adequate notice or an opportunity to testify; (2) failed to make the

necessary finding that he acted in bad faith, vexatiously, wantonly, or for oppressive

reasons, see id. at 45-46; (3) “should not be permitted to resort to its inherent

authority when other bases for consideration of a sanction were available” and either

were not invoked or were improperly imposed, Aplt. Br. at 51; and (4) did not

consider certain factors prescribed by this court for assessing a sanction. None of




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these arguments establish that the inherent-power sanction was an abuse of

discretion.

       First, Mr. Olsen had adequate notice and opportunity to respond. He was a

subject of defendant’s request for sanctions, which invoked the court’s inherent

power; he filed a written response; and he was allowed to address the court in his

capacity as an attorney. Cf. Resolution Trust Corp. v. Dabney, 73 F.3d 262, 268

(10th Cir. 1995) (holding that attorney received inadequate notice of sanctions where

she was not the subject of defendants’ request for sanctions or the district court’s

original order finding sanctionable conduct). There is no merit in Mr. Olsen’s

contentions that the district court impermissibly expanded the proceedings

sua sponte, denied him due process by declining to allow him to testify as a witness,

or impermissibly imposed the inherent-power sanction without undertaking any

further proceedings (such as an additional hearing) after the remand. See, e.g., id.

(“An opportunity to be heard does not require an oral or evidentiary hearing on the

issue; the opportunity to fully brief the issue is sufficient to satisfy due process

requirements.”).

       Second, in imposing the inherent-power sanction the district court relied on its

previous order, in which it explicitly “conclude[d] that Mr. Olsen’s conduct exceeded

mere objective unreasonableness” and stated that inherent authority would support a

sanction. Aplt. App. Vol. XX at 1978. Those conclusions are amply supported by

the district court’s discussion of the underlying facts.


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      Third, in Chambers the Supreme Court stated that “[t]here is . . . nothing in the

other sanctioning mechanisms or prior cases interpreting them that warrants a

conclusion that a federal court may not, as a matter of law, resort to its inherent

power to impose attorney’s fees as a sanction for bad-faith conduct.” 501 U.S. at 50.

The Court continued, “if in the informed discretion of the court, neither [28 U.S.C.

§ 1927] nor the Rules are up to the task, the court may safely rely on its inherent

power.” Id. Our previous decision discussed why some of the other sanctioning

authorities were not “up to the task.” See Mellott, 2012 WL 3008923, at *2-*3.

      Fourth and finally, Mr. Olsen relies on White v. General Motors Corp.,

908 F.2d 675, 684-85 (10th Cir. 1990), for his argument that the district court must

consider certain factors in assessing the amount of a sanction. See Aplt. Br. at 47-48,

55. White, however, involved an award under Rule 11, not under the court’s inherent

power. 908 F.2d at 678. Mr. Olsen has not directed us to any authority requiring a

district court to apply the White factors when imposing an inherent-power sanction.

      The judgment of the district court is affirmed.


                                                Entered for the Court
                                                Per Curiam




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