                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                             OCT 8 1997
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    ARLINE WAGNER,

                 Plaintiff-Appellant,

    and                                                   No. 97-1038
                                                       (D.C. No. 96-S-819)
    DANIEL J. POST, ESQ.,                                  (D. Colo.)

                Intervenor-Appellant,

    v.

    TOWN OF GILCREST,

                 Defendant-Appellee.


                              ORDER AND JUDGMENT *


Before BRORBY, LOGAN, and HENRY, Circuit Judges.


          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); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      In this 42 U.S.C. § 1983 action, plaintiff Arline Wagner and her counsel,

intervenor Daniel J. Post, appeal the district court’s order making them jointly

and severally liable to Wagner’s former employer, defendant Town of Gilcrest,

for attorney’s fees in the amount of $11,819.50. Because we hold that the award

is not sustainable under the findings made by the district court, we reverse and

remand for further proceedings.

                                          I

      The Town employed plaintiff as assistant town clerk and municipal court

clerk from 1990 until 1994 when she was dismissed for performance reasons.

Shortly after her discharge, Post contacted counsel for the Town with a claim that

Wagner, in her capacity as municipal court clerk, was a town officer within the

meaning of Colo. Rev. Stat. § 31-4-304, 1 and therefore entitled to a pretermina-

tion hearing under Colo. Rev. Stat. § 31-4-307. 2

1
      In pertinent part, the statute provides:

            The board of trustees shall appoint a clerk, treasurer, and town
      attorney . . . [and] such other officers . . . as it deems necessary for
      the good government of the corporation, and it shall prescribe by
      ordinance their duties when the same are not defined by law and the
      compensation or fees they are entitled to receive for their services.

Colo. Rev. Stat. § 31-4-304.
2
      In pertinent part, the statute provides:

      By a majority vote of all members of the board of trustees, the
                                                                        (continued...)

                                         -2-
         Counsel for the Town responded that in his legal opinion Wagner was a

mere employee, not an officer, and that the board of directors acted within its

lawful powers in dismissing her. Post, on behalf of Wagner, nonetheless filed a

lawsuit in the district court for Weld County, Colorado, alleging that the Town’s

actions violated 42 U.S.C. § 1983 and Colo. Rev. Stat. § 31-4-307.

         After removing the case to federal court, the Town moved for summary

judgment, contending that it had the legal right to discharge Wagner without

holding a hearing. Wagner’s responsive filing was late and skeletal. It acknowl-

edged that there were no disputed issues of material fact, but “disagree[d] as to

the law stated in the Defendants’ brief.” Appellant’s App. 36. In full, Wagner’s

argument was that “pursuant to evidence adduced in depositions previously taken

in this case, the Plaintiff was, in fact, a statutory officer of the town of Gilcrest

insofar as she was the designated Court Clerk.” Id. The response contained no

citations to the record or legal authority.

         The district court granted the motion for summary judgment, determining

that Wagner was not entitled to the notice and hearing requirements of Colo. Rev.


2
    (...continued)
          mayor, the clerk, the treasurer, any member of the board, or any other
          officer of the town may be removed from office. No such removal
          shall be made without a charge in writing and an opportunity of
          hearing being given. . . .

Colo. Rev. Stat. § 31-4-307.

                                            -3-
Stat. § 31-4-307. Following the entry of summary judgment, Wagner filed a

motion for reconsideration, this time citing to the Colorado statute that estab-

lished the position of municipal court clerk. 3 The Town filed a motion for

attorney’s fees under 28 U.S.C. § 1927 and 42 U.S.C. § 1988. The district court

summarily denied the motion to reconsider, but granted the motion for attorney’s

fees. The court found that two facts were especially important to its determina-

tion that the complaint lacked substantial justification: (1) Post had received

defense counsel’s letter outlining the deficiencies of his proposed case before

initiation of litigation, and (2) Wagner had admitted in her deposition “that she

had no information, documentary or otherwise, to support her claim that she was a

statutory officer.” Appellant’s App. 68. The court found “violations of both

§ 1927 and § 1988 by both the Plaintiff and her counsel,” and held them jointly

and severally liable for a fee award of $11,819.50. Id. at 70.



3
     Colo. Rev. Stat. § 13-10-108, which had been cited in the town’s summary
judgment brief, provides, in pertinent part:

       (1) The municipal governing body shall establish the position of
      clerk of the municipal court, except that the municipal judge shall
      serve as ex officio clerk if the business of the court is insufficient to
      warrant a separate full-time or part-time clerk.
      (2) The clerk of the municipal court shall be appointed by the
      presiding municipal judge and shall have such duties as are delegated
      to him by law, court rule, or the presiding municipal judge.
      (3) The municipal governing body shall provide for the salary of the
      clerk of the municipal court . . . .

                                         -4-
      Wagner’s second motion for reconsideration argued against the fee award

and, for the first time, alleged reasons why Post had anticipated an admission

from the Town that Wagner was a statutory officer. Id. at 74-76. The district

court denied the motion to reconsider but granted Post’s motion to intervene in

order to appeal his personal liability for the judgment on attorney’s fees.

                                          II

      Our sole issue on appeal is the propriety of the fee award under the cited

statutes. Wagner does not seek to set aside the summary judgment. See 10th Cir.

Order of March 3, 1997 (granting Wagner’s motion under Fed. R. App. P. 42(b)

to voluntarily dismiss the appeal of the order granting summary judgment).

Moreover, Post, who has accepted financial responsibility for the total award,

does not question the imposition of joint and several liability or quarrel about

defense counsel’s billing rates and compensable hours.

      “We review an award of attorney’s fees for abuse of discretion. However,

any statutory interpretation or other legal analysis which provides the basis for the

award is reviewable de novo.” Corneveaux v. CUNA Mut. Ins. Group, 76 F.3d

1498, 1508 (10th Cir. 1996) (citations and quotation omitted). We therefore

examine the award to determine whether the district court exceeded the bounds of

permissible choice under the standards applicable to 42 U.S.C. § 1988 and 28

U.S.C. § 1927.


                                         -5-
      Although the district court did not provide separate explanations for the

awards under each statute, the standards for these two fee-shifting provisions are

quite different.

                                            A

      With regard to an award under § 1988, a prevailing defendant in a § 1983

action may recover attorney’s fees only if the lawsuit was “‘frivolous, unreason-

able, or without foundation, even though not brought in subjective bad faith.’”

Clajon Prod. Corp. v. Petera, 70 F.3d 1566, 1581 (10th Cir. 1995) (quoting

Hughes v. Rowe, 449 U.S. 5, 14 (1980) (further quotation omitted)). This is a

“stringent” standard, Figures v. Board of Pub. Utils., 967 F.2d 357, 362 (10th Cir.

1992), so that rarely is a suit so truly frivolous that a plaintiff is required to pay

attorney’s fees to the defendant, see Clajon, 70 F.3d at 1582. And the court may

not award attorney’s fees against counsel under § 1988. See Roadway Express,

Inc. v. Piper, 447 U.S. 752, 761 (1980) (noting that § 1988 makes no mention of

attorney liability for costs and fees).

      Wagner’s case was not so lacking in foundation that an award of fees is

warranted under § 1988. The cornerstone of her due process claim is that, as a

matter of Colorado law, she was a town officer entitled to a pretermination

hearing. Colorado case law offers scant guidance on the interpretation and

application of the relevant statutes. The Town relied primarily on secondary


                                           -6-
authorities for its contention that Wagner was a public employee, not an officer.

See Appellee’s Supp. App. 12-13 (citing 63A Am. Jur. 2d Public Officers and

Employees §§ 9, 24 (1984); 3 Eugene McQuillen, The Law of Municipal Corpora-

tions, § 12.30 (3d ed. 1990)). These secondary authorities observe that the

distinction between employee and officer is “not always clearly marked by

judicial expression and is frequently shadowy and difficult to trace.” 63A Am.

Jur. 2d Public Officers and Employees at § 11.

      Even though the distinction may be vague, “[t]he characteristics of a public

office are generally agreed upon.” Id. at § 9. As summarized by the Town, these

characteristics include

      (1) creation by statute or constitution; (2) exercise of some portion of
      the sovereign power; (3) a continuing position not occasional or
      contractual; (4) a fixed term of office; (5) an oath requirement; (6)
      liability for misfeasance or nonfeasance; and (7) the official has an
      independence beyond that of employees.

Appellee’s Supp. App. 12-13. Wagner’s position of municipal court clerk had at

least three of these characteristics, in that it was created by statute, involved the

exercise of a portion of sovereign power, and continuing. It is of no significance

that Wagner was unable to articulate this legal argument at her deposition, or that,

on advice of counsel, she rejected the Town’s contrary argument.




                                           -7-
      Although likely to fail, the due process claims set out in the complaint were

not frivolous, unreasonable, or precluded by precedent. We therefore must

reverse the district court’s fee award insofar as it is based on § 1988.

                                           B

      Our analysis of the imposition of fees as a sanction under 28 U.S.C. § 1927

must begin with the statute’s plain warning that an attorney who multiplies

proceedings “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.” The focus is on conduct attributable to counsel “that

imposes unreasonable and unwarranted burdens on the court and opposing par-

ties,” Braley v. Campbell, 832 F.2d 1504, 1510 (10th Cir. 1987), and that,

“viewed objectively, manifests either intentional or reckless disregard of the

attorney’s duties to the court,” id. at 1512.

      The findings of the district court do not support the sanction under § 1927

of payment of the attorney’s fees incurred in defending against the entire case.

As we have explained above, Post’s filing of a complaint on Wagner’s behalf was

not frivolous, not an undue burden on defendant, and not a waste of a court’s

time. Counsel’s other actions or failures to act, however, support a finding of a

disregard for his duties to the court that may have led to a “sanctionable multipli-

cation of proceedings.” Id. at 1513. In particular, we disapprove of his practice


                                          -8-
of providing legal argument in installments, beginning with an unsupported late

response to the Town’s summary judgment motion and ending with a second

motion to reconsider. As to the § 1927 award, we reverse and remand for specific

findings, “identify[ing] the extent of the multiplicity resulting from the attorney’s

behavior and the costs arising therefrom.” Braley, 832 F.2d at 1513.

      We REVERSE the award of attorney’s fees under 42 U.S.C. § 1988 and

against plaintiff Wagner under 28 U.S.C. § 1927. We REMAND the matter to the

district court for reconsideration of sanctions against counsel Post under the

appropriate § 1927 standards. The Town’s request for attorney’s fees incurred

upon appeal is denied. The parties are to bear their own costs on appeal.

                                                Entered for the Court

                                                James K. Logan
                                                Circuit Judge




                                          -9-
