## Facts

- Colorado law-enforcement officers associated with the Twenty-Second Judicial District Drug Task Force conducted a “ruse” narcotics checkpoint operation on Highway 145 using signs warning of a checkpoint and drug dog, although no checkpoint existed.
- After encountering the signs, Stephen C. Roth and Ellen Gumeson were stopped, their vehicle was searched, and they were arrested.
- Roth and Gumeson, represented by attorney Robert Mulhern, sued multiple municipalities, counties, and officers under 42 U.S.C. § 1983, alleging unconstitutional stop, search, and arrest.
- The district court disposed of the § 1983 case in defendants’ favor through dismissal and/or summary judgment; the Tenth Circuit affirmed on the merits.
- Defendants sought sanctions against Mulhern under Federal Rule of Civil Procedure 11 and attorney’s fees under 28 U.S.C. § 1927; the district court imposed Rule 11 sanctions and awarded substantial § 1927 fees (about $92,000).
- After defendants obtained an appellate fee entitlement for the earlier merits appeal, the district court set the amount at about $12,000 and assessed it against Roth and Gumeson.
- Mulhern appealed the Rule 11 and § 1927 rulings; Roth and Gumeson appealed the $12,000 appellate fee assessment.

## Issues

1. Whether Rule 11 sanctions were proper based on counsel’s filing and advocacy of the § 1983 complaint.
2. Whether sanctions under 28 U.S.C. § 1927 were warranted for counsel’s post-filing conduct, and whether the fee amount was properly limited to excess costs caused by that conduct.
3. Whether the district court erred by imposing appellate attorney’s fees against the plaintiffs without considering their ability to pay.

## Decision

- The court reversed the Rule 11 sanctions imposed on attorney Mulhern.
- The court affirmed that § 1927 sanctions against Mulhern were permissible but remanded for recalculation limited to fees causally tied to vexatious multiplication of proceedings.
- The court vacated the $12,000 appellate fee award against Roth and Gumeson and remanded for reconsideration with explicit consideration of their ability to pay.

## Legal Principles

- Rule 11 uses an objective reasonableness standard at the time of filing; an unsuccessful legal theory is not sanctionable if supported by existing law or a nonfrivolous argument to extend or modify the law.
- Rule 11 cannot be imposed merely because claims fail on the merits; courts must distinguish losing claims from frivolous claims.
- 28 U.S.C. § 1927 addresses unreasonable and vexatious multiplication of proceedings, focusing on post-filing litigation conduct rather than the initial decision to sue.
- A § 1927 award must be compensatory and limited to fees and costs caused by the attorney’s sanctionable conduct.
- In setting attorney’s fee amounts against civil rights plaintiffs, courts may consider equitable factors, including the plaintiffs’ financial resources and ability to pay.

## Conclusion

The Tenth Circuit held that counsel’s unsuccessful constitutional claims did not justify Rule 11 sanctions, but that counsel could be required under § 1927 to reimburse only the excess defense costs caused by vexatious post-filing conduct, and it required the district court to reassess an appellate fee award against the plaintiffs after considering their ability to pay.


Roth v. Green, 466 F.3d 1179 (10th Cir. 2006)