                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                        F I L E D
             IN THE UNITED STATES COURT OF APPEALS                      February 6, 2006

                        FOR THE FIFTH CIRCUIT                       Charles R. Fulbruge III
                                                                            Clerk


                               No. 04-20921


     SAM BYNUM, Individually and on behalf of all
     others similarly situated,

                                           Plaintiff-Appellant,

                                  versus

     AMERICAN AIRLINES INC.; ET AL.,

                                           Defendants,

     AMERICAN AIRLINES INC.; CONTINENTAL AIRLINES INC.; DELTA
     AIRLINES, INC.; NORTHWEST AIRLINES, INC.,

                                           Defendants-Appellees,

                                  versus

     MARIAN ROSEN,
                                                 Appellant.


              Appeal from the United States District Court for
                       the Southern District of Texas
                         (USDC No. 4:03-CV-518)
     _________________________________________________________

Before REAVLEY, JOLLY and OWEN, Circuit Judges.


                                    1
PER CURIAM:*

      We vacate and remand for the following reasons:

      1.     The district court held that Appellant’s lawsuit had no basis in fact or

      law. It then imposed sanctions in the amount of $27,943.23 on Appellant and

      his counsel jointly and severally.1 The district court did not specify pursuant

      to which rule or power it was sanctioning the Appellant and his counsel.

             Sanctions may rest on Federal Rule of Civil Procedure 11, 28 U.S.C.

      § 1927, or its inherent power. Mercury Air Group, Inc. v. Mansour, 237

      F.3d 542, 548 (5th Cir. 2001) (Rule 11); Travelers Ins. Co. v. St. Jude Hosp.

      of Kenner, La., Inc., 38 F.3d 1414, 1417-18 (5th Cir. 1994) (28 U.S.C. §

      1927); Gonzalez v. Trinity Marine Group, Inc., 117 F.3d 894, 898 (5th Cir.

      1997) (inherent authority). However, since the district court sanctioned the

      party and counsel, and held them jointly and severally liable, the district court

      could not have been acting under § 1927 because only the attorney, not the

      client, may be sanctioned under § 1927. Magnum Oil Co. v. City of Houston,

      *
          Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.
      1
        We note that the Appellees requested attorneys’ fees and costs as sanctions
against Appellant’s counsel, not Appellant. Nevertheless, the district court imposed
sanctions on both Appellant and his counsel.

                                          2
143 F.3d 205, 208 (5th Cir. 1998). If the district court was acting under §

1927, it abused its discretion in awarding the sanctions.

      Sanctions under Rule 11 may be appropriate if: (1) a document has

been presented for an improper purpose (Rule 11(b)(1)), (2) the claims or

defenses of the signer are not supported by existing law or by a good-faith

requirement for an extension or change in existing law (Rule 11(b)(2)), or (3)

the allegations and other factual contentions lack evidentiary support or are

unlikely to do so after a reasonable opportunity for investigation (Rule

11(b)(3)). First, we cannot glean from the district court’s oral statements that

a document was presented for an improper purpose under Rule 11(b)(1).

Further, the parties do not argue that Rule 11(b)(1) applies. Second,

monetary sanctions can be imposed against the attorney but not the client for

violations of Rule 11(b)(2). See FED. R. CIV. P. 11(c)(2)(A). Since the

district court sanctioned the party and counsel, the district court could not be

acting under Rule 11(b)(2). If the district court was acting under Rule

11(b)(2) (which it appears it was doing when it stated that Appellant’s claims

lacked legal merit), the district court abused its discretion by improperly

sanctioning both the party and counsel.

       In his complaint, Appellant asserted two claims–violations of Title III

                                    3
of the Americans with Disabilities Act (ADA) and the Air Carrier Access Act

(ACAA). Appellant requested injunctive and declaratory relief under both

statutes seeking captions for in-flight movies and safety films. The district

court held that Appellant’s ADA claim had no basis in law because the ADA

specifically excludes airplanes from coverage. However, it is not clear (or

settled precedent, at least in this circuit) that airplanes are not covered by

Title III of the ADA. The district court did not cite a case in support of its

holding. The two cases cited by Appellees, Love v. Delta Airlines, 179 F.

Supp. 2d 1313, 1316 (M.D. Ala. 2001), rev’d on other grounds, 310 F.3d

1347 (11th Cir. 2002) and Access Now, Inc. v. Southwest Airlines Co., 385

F.3d 1324, 1332 (11th Cir. 2004), only held that airlines are not generally

covered by Title III of the ADA.

      In the instant case, the district court also concluded that Appellant’s

ACAA claim failed because that statute includes no private right of action.

This holding is directly contrary to Fifth Circuit precedent. In Shinault v.

American Airlines, Inc., 936, F.2d 796, 800 (5th Cir. 1991), this court

specifically held that the ACAA provides a private right of action. Shinault

has not been overruled even though other circuits have reached a different

conclusion. The district court also held that enforcement of the ACAA lies

                                     4
solely with the Department of Transportation. This court held in Shinault that

the Department of Transportation has primary jurisdiction over claims for

injunctive relief under the ACAA. Id. at 805. In addition, this court stated:

“[o]ur unwillingness to hear Shinault’s claim for injunctive relief should not

be interposed as a blanket proscription on judicially issued injunctions under

the ACAA.” Id. Thus, the availability of injunctive relief under the ACAA is

far from settled in this circuit. Further, this court has not dealt with

declaratory relief under the ACAA. In sum, Appellant’s ADA and ACAA

claims were supported by existing law (or at the very least not directly

contrary to existing law so as to be frivolous).

      We next turn to whether there was a violation of Rule 11(b)(3). It

appears that the district court did sanction the Appellant and his counsel

under Rule 11(b)(3) based on a lack of factual support for Appellant’s claims.

In granting summary judgment, the district court held that Appellant lacked

standing to sue because he failed to show that he had flown on an airplane

before he sued and that he lacks an injury. Prior to granting summary

judgment, the district court ordered Appellant to file a pleading listing all of

the airlines that he had flown since the effective date of the ADA, and

whether those flights were domestic or international. Appellant responded

                                     5
      that he had flown domestic flights on American Airlines, Continental Airlines,

      and Delta Airlines. He did not state he had flown on Northwest Airlines,

      which he had named as a defendant, or that he had flown on any international

      flights.2 The district court then ordered Appellant to list “what airlines he

      flew on specific dates” for the six months prior to filing suit.3 Appellant

      responded that he had flown domestically on Continental Airlines in January

      2004 and on Delta Airlines in June 2004, after filing suit.

             At the sanction hearing, Appellant testified:

             Q:    You are aware that you have sued nine different carriers in this
                   lawsuit?
             A:    Yes, ma’am.
             Q:    Have you flown on each and every one of those air carriers at
                   some point in time?
             A:    Yes.


             He further testified that in the last four years he had flown to Hawaii,

      Washington, D.C., Austin, Dallas, Las Vegas, Guadalajara, Mexico, and


      2
         We note that the Deutsche Lufthansa AG, Air France LLP, British Airways
PLC, and Virgin Atlantic Airways Ltd. (collectively “International Carriers”) chose
not to pursue attorneys’ fees. The four domestic carriers that sought attorneys’ fees
as sanctions were American Airlines, Delta Airlines, Continental Airlines, and
Northwest Airlines.
      3
        We are unsure as to why the district court requested this information for
only the six month period prior to the filing of the lawsuit.

                                          6
Seattle. He could not recall the specifics of these flights, the exact dates and

which airlines he flew to each destination. He further testified that he

attempted to contact the airlines and that they were unable to provide him

with the information on the flights. He testified that he had discarded the

documentation on the flights. Appellant testified that his father paid for the

flights, but would not release the documents to him. He stated that he had

been diagnosed with psychosis and had trouble communicating with his

attorney. Appellant testified that he believed that in 2001 or 2002 he flew on

a Continental flight and questioned a stewardess if any accommodation could

be made because he could not listen to a movie.

      We agree with the district court that Appellant’s lawsuit against the

airlines for which he had not flown lacked any basis in fact and that he lacked

standing to sue these airlines (Northwest Airlines and the International

Carriers). However, as for Continental Airlines, Delta Airlines, and

American Airlines, Appellant specifically listed these airlines as ones he had

flown since the effective date of the ADA. While Appellant or his counsel

did not have documentation supporting these flights prior to filing suit, the

standard certification for factual allegations under Rule 11(b)(3) is that there

is (or likely will be) evidentiary support for the allegation, not that the party

                                     7
will prevail with respect to its contention.

The district court admonished Appellant’s counsel that she should have a

factual basis or inquired into the factual basis before filing suit. Appellant’s

counsel admitted that she did not subpoena the records from the airlines, but

explained that the parties agreed to defer discovery until after ruling on the

motion to dismiss. Appellant’s counsel also stated she understood that

Appellant had flown the domestic carriers that were sued, but not the

International carriers. Thus, what we have here is clearly baseless claims

against Northwest Airlines and the International Carriers (those airlines he

had not flown), but not against Continental Airlines, Delta Airlines, and

American Airlines (the airlines that he had flown). Thus, the district court

abused its discretion in awarding sanctions to Continental Airlines, Delta

Airlines, and American Airlines; however, Northwest Airlines could be

entitled to sanctions.

      We finally turn to the district court’s inherent power “to manage their

own affairs so as to achieve the orderly and expeditious disposition of cases.”

Gonzalez, 117 F.3d at 898 (internal quotation marks and citation omitted).

One aspect of this inherent power is the power to impose sanctions, including

attorneys’ fees, on litigants for conduct that is in bad faith, vexatious, wanton,

                                     8
or undertaken for oppressive reasons. Chambers v. NASCO, Inc., 501 U.S.

32, 44-46, 111 S. Ct. 2123, 2132-33 (1991). The district court must make a

finding that the sanctioned party engaged in conduct that is tantamount to

“bad faith” before imposing sanctions pursuant to its inherent power. Elliott

v. Tilton, 64 F.3d 213, 217 (5th Cir. 1995).

      Appellees claim that the district court made a finding that Appellant

and his counsel engaged in conduct tantamount to “bad faith” when it stated:

             You have no facts. What you have done is when your
      negotiation for a change in airline policy and practice would benefit
      your client did not succeed, that you were unable to convince the
      airlines that they should make these changes, then you sued them
      for not making the changes.
             It’s a free country and you are entitled to ask the airlines to
      do whatever you want to, and if it is not compelled by law to do it,
      you have no right to sue them for not doing what you want, what
      you wish, what you prefer, what you think is better.
             And even if you do sue them, you have to have the facts.
      The client, Bynum, has to have the facts that meet the law. I didn’t
      make the Disability Act, I didn’t make the federal aviation
      regulation scheme, I didn’t make the Warsaw Convention, I just
      apply the stuff.
             But this is not a legislature, it is not a press conference.
      What you did apparently is file a suit hoping that the existence of
      the suit would pressure the airlines into doing something they were
      not obliged to do at law, and what you could not convince them to
      do as a matter of business practice.
                            * * *
             But we have established a complicated and reasonably
      effective, however difficult it is, system of limited airline
      regulation. And that doesn’t include the claims that [Appellant]

                                    9
             can legitimately make because of his experiences, and those laws
             do not include your opportunity to sue based on your feelings about
             what the airlines ought to do. That is not what lawsuits are.
             Appellees believe that these statements show “the district court

      concluded the primary reason [Appellant and his counsel] filed this lawsuit

      was to impose costs on the airlines so that the airlines would bend their policy

      demand without evidentiary or legal support.” Appellees also contend that

      Appellant’s counsel’s admission that she filed this action as an “advocacy

      action” supports the district court’s finding of “bad faith.”4 Appellees rely on

      Batson v. Neal Speke Assos., Inc., 805 F.2d 546, 550 (5th Cir. 1986) (quoting

      Lipsig v. Nat’l Student Marketing Corp., 663 F.2d 178, 181 (D.C. Cir.

      1980)) for the proposition that “advocacy simply for the sake of burdening an

      opponent with unnecessary expenditures of time and effort clearly warrants

      recompense for the extra outlays attributable thereto.” We question whether



      4
        At the sanction hearing, the following exchange between the Court and
Appellant’s counsel took place:

      THE COURT:          So, Ms. Rosen, is it fair to say that this is simply an
                          advocacy action?
      MS. ROSEN:          Yes, Your honor.
                          Your honor, may I say –

Rosen did not complete her response and the district court continued with its
remarks.

                                          10
the necessary finding was made and whether it would be supported by the

record. As explained, the district court abused its discretion in finding that

certain facts to be unsupported and in finding that Appellant’s claims have no

support in the law.

2.    In addition, the $27,943.23 sanction by the district is not supported by

proof of the incurred fees and expenses. The only evidence submitted by

Appellees in support of their request for fees and expenses as a sanction was

the affidavit of an attorney who in conclusory fashion stated that attorneys’

fees and costs incurred in connection with the defense of this matter totaled

$27,943.23. The affiant also stated that she believed that the “fees and costs

in this matter are reasonable and customary in Houston, Texas for this type of

case.” No supporting documentation, timesheets or otherwise, was attached

to the affidavit explaining the basis for the $27,943.23 in fees and costs.

Without supporting documentation, it is impossible to determine whether the

fees and costs were reasonable and, hence, whether the sanction based on the

fees and costs was reasonable. FED. R. CIV. P. 11(c)(2) (an award of attorney

fees and expenses to the opposing party must be “reasonable” in amount).

      Accordingly, we VACATE the district court’s judgment and

REMAND for further order if in accord with this opinion.

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