and 01-3572 TODD MURPHY; ROSEANN MURPHY, husband and wife v. Housing Authority

NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 01-3426 and 01-3572
___________
TODD MURPHY; ROSEANN MURPHY, husband and wife
v.
HOUSING AUTHORITY AND URBAN REDEVELOPMENT AGENCY OF THE
CITY OF ATLANTIC CITY, a New Jersey municipal corporation; JOHN GLOWACKI,
an individual; JOHN J. MCAVADDY, JR., an individual; JOHN P. WHITTINGTON, an
individual; JOHN DOES 1 THROUGH 15, inclusive, fictitious named defendants,
jointly, severally, and in the alternative
Clifford L. Van Syoc, Appellant at No. 01-3426
(Pursuant to F.R.A.P. 12(a))
Housing Authority and Urban Redevelopment Agency
Of the City of Atlantic City; John Glowacki;
John J. McAvaddy, Jr.; John P. Whittington
Appellants at No. 01-3572
___________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 97-cv-01558)
District Judge: The Honorable Stephen M. Orlofsky
___________
Submitted Under Third Circuit LAR 34.1(a)
June 7, 2002
BEFORE: NYGAARD, BARRY, and MAGILL, Circuit Judges.
(Filed: October 16, 2002)
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Todd and Roseann Murphy, represented by Clifford Van Syoc, sued the
Housing Authority of Atlantic City, New Jersey, for, among other allegations, reverse
race and sex discrimination in violation of 42 U.S.C. 1983 and Title VII. The District
Court found that Murphy failed to establish a prima facie case for any discrimination and

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granted summary judgment in favor of the Housing Authority. Murphy v. Housing
Authority, 32 F.2d 753 (D.N.J. 1999). Murphy appealed and we affirmed that decision on
January 31, 2000. Murphy v. Housing Authority, 208 F.3d 206 (3d Cir. 2000).
Subsequently, the Housing Authority, pursuant to 28 U.S.C. 1927, filed an application
for fees, costs and sanctions in the District Court, alleging frivolous litigation and
frivolous appeal. The District Court granted the Housing Authority’s motion in part,
awarding the Authority $56,000 in fees and $2,300 in costs to be paid by Attorney Van
Syoc for unreasonably and vexatiously multiplying litigation for the period up to the grant
of summary judgment. The Court, however, declined to award damages for filing a
frivolous appeal, holding that any such award was more appropriately handled by this
court pursuant to a Rule 38 motion. Murphy v. Housing Authority, 158 F. Supp.2d 438
(D.N.J. 2001). Both parties have appealed. Van Syoc argues that imposing sanctions
against him was an abuse of discretion in that there was no clear finding of bad faith on
his part. The Housing Authority argues that the District Court’s refusal to award damages
for filing a frivolous appeal was in error. We will affirm.
I.
Van Syoc argues that the District Court abused its discretion by imposing
sanctions, and by making numerous clear errors in its finding of bad faith. His arguments
are specious. 28 U.S.C. 1927 gives a District Court the authority and discretion to levy
expenses, costs and fees against any attorney "who so multiplies the proceedings in any
case unreasonably and vexatiously." We have previously held that "a bad faith finding is
required as a precondition to the imposition of attorneys’ fees under section 1927." Baker
Industries, Inc. v. Valley Fair, 932 F.2d 204, 208 (3d Cir. 1985). Although bad faith may
be inferred from the record, here, the District Court found that Van Syoc acted in bad
faith for the following reasons:
(1)Mr. Van Syoc’s pursuit of baseless claims, the frivolous nature of which
he should have been aware by, at the latest, the Defendants’ filing of their
motion for summary judgment on August 17, 1998; and (2) Mr. Van Syoc’s
assertion of Roseann Murphy’s per quod claim under the New Jersey Law
Against Discrimination, N.J.S.A. 10.5-1 et seq., and Title VII, 42 U.S.C.
2000e et seq., when both federal and New Jersey state courts had already
held that per quod claims were not cognizable under either of those sources
of law.
Murphy, 158 F. Supp.2d at 446-47. This finding was not clearly erroneous and we will
affirm.
II.
The Housing Authority argues that the District Court erred as a matter of
law when it denied the Authority’s motion for damages from Attorney Van Syoc’s
frivolous appeal to this Court. We disagree. Quoting the D.C. Circuit, the District Court
wrote that, "it is for the Court of Appeals, not the district court, to decide whether Rule 38
costs and damages should be allowed in any given case." Murphy, 158 F.2d at 451 n. 3
(quoting In re American President Lines, 779, F.2d 714, 717 (D.C. Cir. 1995)). Although
we have, on occasion, remanded a Rule 38 motion to the District Court for it to assist us
by holding a hearing to make findings on Rule 38 motions, here we have not done so and
the court correctly deferred to us. We will affirm.
Conclusion
In sum, and for the foregoing reasons, we will affirm the judgment of the
District Court entered on August 27, 2001.
_________________________
TO THE CLERK:
Please file the foregoing opinion.
/s/ Richard L. Nygaard
Circuit Judge
THE UNITED STATES COURT OF APPEALS

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FOR THE THIRD CIRCUIT
___________
Nos. 01-3426 and 01-3572
___________
TODD MURPHY; ROSEANN MURPHY, husband and wife
v.
HOUSING AUTHORITY AND URBAN REDEVELOPMENT AGENCY OF THE
CITY OF ATLANTIC CITY, a New Jersey municipal corporation; JOHN GLOWACKI,
an individual; JOHN J. MCAVADDY, JR., an individual; JOHN P. WHITTINGTON, an
individual; JOHN DOES 1 THROUGH 15, inclusive, fictitious named defendants,
jointly, severally, and in the alternative
Clifford L. Van Syoc, Appellant at No. 01-3426
(Pursuant to F.R.A.P. 12(a))
Housing Authority and Urban Redevelopment Agency
Of the City of Atlantic City; John Glowacki;
John J. McAvaddy, Jr.; John P. Whittington
Appellants at No. 01-3572
___________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 97-cv-01558)
District Judge: The Honorable Stephen M. Orlofsky
___________
Submitted Under Third Circuit LAR 34.1(a)
June 7, 2002
BEFORE: NYGAARD, BARRY, and MAGILL, Circuit Judges.
___________
JUDGMENT
___________
This cause came to be considered on the record from the United States
District Court for the District of New Jersey and was submitted pursuant to Third Circuit
LAR 34.1(a) on June 7, 2002.
On consideration whereof, it is now here ORDERED AND ADJUDGED by
this Court that the order of the said District Court entered on August 27, 2001, be, and the
same is hereby affirmed.
Costs taxed against Appellant/Cross-Appellee Clifford L. Van Syoc.
All of the above in accordance with the opinion of this Court.
ATTEST:

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_________________________________
Acting Clerk
Dated: 16 October 2002

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