Christopher Manion v. American Airlines, Inc.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 8, 2004 Decided December 28, 2004
No. 03-7165
CHRISTOPHER MANION,
APPELLEE
v.
AMERICAN AIRLINES, INC.,
APPELLEE
ROY W. KRIEGER,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 96cv02094)
Carol E. Bruce argued the cause for appellant. With her on
the briefs was Neal Goldfarb.
Randell C. Ogg argued the cause and filed the brief for
appellee Christopher Manion.
Before: EDWARDS, ROGERS, and ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge EDWARDS.

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EDWARDS, Circuit Judge: Appellant Roy W. Krieger
represented American Airlines, Inc. ("American Airlines") in a
jury trial on a tort claim brought by Appellee Christopher
Manion. Krieger was sanctioned by the District Court for
making statements during his closing argument that defied
specific orders of the court. Krieger concedes that his conduct
was sanctionable, but contests the amount of the sanctions
awarded against him. Appellant submits that the sanction,
ordered pursuant to 28 U.S.C. § 1927 (2000), includes
components that are not compensable under the statute. Krieger
principally contends that the District Court had no authority
under § 1927 to award sanctions for matters that arose before the
sanctionable conduct. He also challenges three other elements
of the award. In defending the sanction, Manion argues that the
District Court intended to rely on its inherent authority in
addition to § 1927.
We find that the sanctions award was expressly ordered
pursuant to § 1927, not the court's inherent authority. However,
we do not reach Krieger's principal contention that matters
arising prior to the sanctionable misconduct are not compensable
under § 1927, because it was not properly raised below. Krieger
did preserve three questions that warrant our attention: whether
the § 1927 sanction appropriately included compensation
relating to (1) Manion's time attending trial proceedings, (2)
Krieger's interlocutory appeal, and (3) Manion's motion for
sanctions before the District Court. We hold that litigation costs
pertaining to Manion's time in court and the interlocutory appeal
are not compensable under § 1927. The litigation costs relating
to Manion's motion for sanctions arose in conjunction with his
defense to Krieger's opposition to a motion for new trial, which
is compensable. Because the costs relating to those two
litigation items cannot be disaggregated, we affirm the judgment
against Krieger on this point.

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I. BACKGROUND
Manion sued American Airlines in tort alleging that he
developed tinnitus because of excessive engine noise while
taking an American Airlines flight from Chicago to Boston.
Krieger served as counsel for American Airlines during the jury
trial. It is not disputed that Krieger engaged in serious and
sanctionable misconduct at closing argument. Manion objected
to Krieger's argument and reserved the right to move for a
mistrial. See Trial Tr. of 4/11/02 at 151, reprinted in Appellant's
Appendix ("App.") 67. The jury returned a verdict for American
Airlines, see Trial Tr. of 4/12/02 at 3-5, reprinted in App. 75-77,
and Manion immediately moved for a mistrial. In the course of
defending his motion for a new trial, Manion also argued for
costs associated with the need for a new trial. See Trial Tr. of
4/12/02 at 7, App. 79. In a memorandum of law supporting his
motion, Manion posited that Krieger's improper and prejudicial
closing argument was grounds for a new trial and submitted that
the court had authority under its inherent power and under §
1927 to award costs, including attorney's fees. See Pl.'s Legal
Mem. Regarding Mot. for New Trial and Other Sanctions,
4/19/02, reprinted in App. 87-90. The District Court granted
Manion's motion for a mistrial on August 1, 2002, and further
ordered "in accordance with 28 U.S.C. § 1927, that plaintiff is
awarded his costs, including reasonable attorney's fees, of the
trial." Manion v. Am. Airlines, Inc., 215 F. Supp. 2d 90, 93
(D.D.C. 2002). In awarding Manion's costs, including
reasonable attorney's fees, the court noted that "Defendant, in his
supplemental opposition, makes no mention whatsoever of
plaintiff's request for costs pursuant to 28 U.S.C. § 1927." Id. at
93 n.6.
On September 13, 2002, Manion filed a submission of fees,
which included $41,375.00 for "Attorney Time," $3,656.85 for
"Trial Expenses," and $2,600.00 for "Client Time." See Pl.'s
Submission of Fees, 9/13/02, reprinted in App. 119-23.

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American Airlines petitioned for mandamus and noted an appeal
in this court of the § 1927 sanction; Manion moved to dismiss
the appeal and for sanctions for filing a frivolous appeal. We
denied the petition for mandamus and dismissed the appeal
because the challenged order did not conclusively determine the
sanctions award as no amount had been set. We also denied the
motion for sanctions. See In re Am. Airlines, Inc., No. 02-5340,
Order (D.C. Cir. Dec. 12, 2002) (denying petition for
mandamus); Manion v. Am. Airlines, Inc., No. 02-7110, Order,
2002 WL 31818922 (D.C. Cir. Dec. 12, 2002) (dismissing
interlocutory appeal and denying motion for sanctions).
On December 19, 2002, Manion moved to liquidate, or set,
the award of sanctions in the amount of $53,983.99, in
accordance with the order of August 1, 2002. This amount
included the initial submission of fees, as well as additional fees
and expenses incurred in defending against American Airlines'
attempt to vacate and appeal the August order. The additional
litigation costs totaled $6,347.14, of which $3,217.50 pertained
to defending against the interlocutory appeal and petition for
mandamus. See Mot. to Liquidate Award of 8/1/02, 12/19/02,
reprinted in App. 135-37. In an order filed September 29, 2003,
the District Court ordered "for the reasons offered by Plaintiff,
that Plaintiff's Motion to Liquidate Award of August 1, 2002 is
GRANTED, and that Defendant and its counsel shall pay to
Plaintiff the sum of $53,983.99, in accordance with the Court's
August 1, 2002 Order . . . ." Manion v. Am. Airlines, Inc., No.
96-2094, Order (D.D.C. Sept. 29, 2003), reprinted in App. 169.
Manion has since settled his dispute with American Airlines.
On this appeal, Krieger concedes that his conduct was
sanctionable, but challenges the amount of the sanctions
awarded against him.

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II. ANALYSIS
A. Jurisdiction
As a preliminary matter, Manion submits that this court
lacks jurisdiction over Krieger's appeal, because Krieger had
filed a "petition to appeal" the sanctions award under Rule 5 of
the Federal Rules of Appellate Procedure, rather than a "notice
of appeal" pursuant to Rules 3 and 4. See Appellee's Br. 1-2.
The argument is without merit. Krieger's filing was not a model
of clarity, but it was sufficient to satisfy the requirements of
Rule 3. See, e.g., Interstate Natural Gas Ass'n of Am. v. FERC,
756 F.2d 166, 170 (D.C. Cir. 1985) (per curiam) ("Federal
appellate courts have broadly recognized that the filing of a
paper substantially equivalent to one that formally inaugurates
the normal review process may well suffice for that purpose.").
Rule 3 requires that a notice of appeal:
(A) specify the party or parties taking the appeal by naming
each one in the caption or body of the notice . . . ;
(B) designate the judgment, order, or part thereof being
appealed; and
(C) name the court to which the appeal is taken.
FED. R. APP. P. 3(c)(1). In his mislabeled filing, Krieger
provided the requisite data to comply substantively with Rule 3.
His "petition to appeal" began:
NOW COMES Petitioner, Roy W. Krieger . . . and hereby
petitions to appeal to the United States Court of Appeals for
the District of Columbia Circuit the final judgment entered
in Manion v. American Airlines, Inc. . . . on September 29,
2003 awarding sanctions against him under 28 U.S.C. §
1927, and all prior related rulings.

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Pet. to Appeal, 10/28/03, reprinted in Appellant's Supplemental
App. 1. We are satisfied that our jurisdiction is properly
invoked.
B. District Court's Sanctioning Authority
The District Court's order granting sanctions expressly
relied only on 28 U.S.C. § 1927. Manion contends, however,
that we should review the sanctions award as an exercise of the
District Court's inherent authority. See Appellee's Br. 14-15.
We decline the invitation, because the District Court did not
purport to rely on its inherent authority. Instead, it specifically
granted the sanctions award under § 1927. The court's passing
reference to the "reasons offered by Plaintiff" in the subsequent
order liquidating the award of sanctions, Manion v. Am. Airlines,
Inc., No. 96-2094, Order (D.D.C. Sept. 29, 2003), App. 169,
does not indicate that the District Court intended to rely on a
different sanctioning authority than that pursuant to which the
sanction was expressly granted. We therefore conclude that the
sanctions award was ordered solely pursuant to 28 U.S.C. §
1927. See GRiD Sys. Corp. v. John Fluke Mfg. Co., 41 F.3d
1318, 1320 (9th Cir. 1994) (holding that a sanction cannot be
affirmed under the district court's inherent authority where the
court relied on § 1927); cf. Ashby v. McKenna, 331 F.3d 1148,
1151 (10th Cir. 2003) ("[W]ith respect to a matter committed to
the district court's discretion, we cannot invoke an alternative
basis to affirm unless we can say as a matter of law that it would
have been an abuse of discretion for the trial court to rule
otherwise.") (internal quotation marks omitted).
The parties make a number of arguments on whether and
how the District Court can invoke its inherent authority, but we
do not address these issues. The District Court was explicit in
this case regarding its sanctioning authority, and Manion did not
object below that the court should have invoked its inherent
power.

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C. Compensable Litigation Costs Under 28 U.S.C. § 1927
Krieger argues that certain amounts and particular elements
of the sanctions award exceed the scope of permissible sanctions
under § 1927. We now turn to those issues.
Section 1927 provides:
Any attorney or other person admitted to conduct cases in
any court of the United States or any Territory thereof who
so multiplies the proceedings in any case 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.
28 U.S.C. § 1927. We review the trial court's calculation of
sanctions for abuse of discretion. See LaPrade v. Kidder
Peabody & Co., 146 F.3d 899, 904 (D.C. Cir. 1998) ("This court
reviews a district court's decision to award attorneys' fees under
28 U.S.C. § 1927, and the way it chooses to set the award, only
for abuse of discretion.").
Krieger contests specific amounts awarded by the District
Court for certain litigation costs, e.g., expert witness fees. See
Appellant's Br. 27. Upon careful review of the record, we
discern no legal or factual errors, and nothing even approaching
an abuse of discretion, in the District Court's findings in support
of the amounts awarded. Therefore, save for the two categories
of costs discussed below, we affirm the amounts awarded
against Krieger. Krieger primarily contends that § 1927 does
not authorize sanctions for matters that arose before the
sanctionable conduct. See Appellant's Br. 12-13. We decline to
consider this argument, however, because it was not presented
to the District Court. "It is the general rule, of course, that a
federal appellate court does not consider an issue not passed
upon below." Singleton v. Wulff, 428 U.S. 106, 120 (1976). We
consistently have refused to "hold a trial court to be in error in
failing to decide an issue not put before it in a civil action."

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Stouper v. Jones, 284 F.2d 240, 243 (D.C. Cir. 1960). Krieger
did raise three other points, however, that warrant our attention.
First, Krieger submits that § 1927 does not authorize
compensation for Manion's time in attending court proceedings.
See Appellant's Br. 13-17. Manion makes a futile attempt to
argue that this issue was not raised below. Before the trial court,
in his opposition to plaintiff's motion to liquidate the sanctions
award, Krieger argued that
Plaintiff's claim for "Client Time" in the amount of $65.00
per hour for 40 hours is non-recoverable. Not only does
Plaintiff provide no evidence that he would have earned this
amount absent his attendance at trial, as a matter of law he
is entitled to no compensation for attendance at trial . . . .
Def.'s Opp'n to Pl.'s Mot. to Liquidate Award of 8/1/02, 1/2/03
("Def.'s Opp'n"), reprinted in App. 159. The issue clearly was
preserved.
Manion appears wisely to concede that his time in attending
court proceedings does not constitute "attorney's fees" or "costs"
under § 1927. See Appellee's Br. 32-33 & n.52. He submits,
however, that his lost income comprises an "expense" under the
statute. See id. at 33. The argument is without merit. In an
analogous situation, we held that a pro se litigant's time as an
attorney or an expert witness in his own case did not constitute
"fees and other expenses" under the governing fee-shifting
statute for Equal Access to Justice Act awards. Kooritzky v.
Herman, 178 F.3d 1315, 1317-23 (D.C. Cir. 1999) (internal
quotation marks omitted). We noted that "it would seem a
strange incentive to provide witness fees not for the purpose of
reimbursing a litigant for his out-of-pocket costs, but as salary
for time spent as a witness in his own litigation." Id. at 1322.
It would be stranger still to provide the plaintiff with a salary for
his entire time at trial.

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The Federal Circuit recently construed language similar to
§ 1927 and held that a pro se litigant's time working on
discovery did not constitute "'expenses incurred'" under Rule 37
of the Federal Rules of Civil Procedure. Pickholtz v. Rainbow
Techs., Inc., 284 F.3d 1365, 1374-75 (Fed. Cir. 2002) (quoting
FED. R. CIV. P. 37(a)(4)(A) as providing for "reasonable
expenses incurred in making the motion [for order compelling
disclosure or discovery], including attorney's fees"). The court
found the term "incurred" controlling. See id. We agree with
our colleagues on the Federal Circuit that "one cannot 'incur'
fees payable to oneself, fees that one is not obliged to pay," id.,
as the term means "become liable or subject to[;] bring down
upon oneself." WEBSTER'S THIRD NEW INTERNATIONAL
DICTIONARY 1146 (1993); see also BLACK'S LAW DICTIONARY
771 (7th ed. 1999) (defining "incur" as "[t]o suffer or bring on
oneself (a liability or expense)"). Nor can one's time constitute
a "payable 'expense,' as there is no direct financial cost or charge
associated with the expenditure of one's own time." Pickholtz,
284 F.3d at 1375. We therefore conclude that the plain language
of the statute forecloses compensation for Manion's time in
attending court proceedings.
Krieger also contends that § 1927 does not permit
compensation for litigation costs relating to his interlocutory
appeal. See Appellant's Br. 23-25. Krieger relies on Cooter &
Gell v. Hartmarx Corp., 496 U.S. 384 (1990), which held that
Rule 11 of the Federal Rules of Civil Procedure "does not
authorize a district court to award attorney's fees incurred on
appeal." Id. at 409. Although Cooter & Gell does not control
this case, much of its rationale applies with equal force in the §
1927 context. Cooter & Gell emphasized that "expenses
incurred in defending the award on appeal are directly caused by
the district court's sanction and the appeal of that sanction," not
the sanctionable conduct. Id. at 407. Undergirding Cooter &
Gell, moreover, is a concern that the district court oversteps its
bounds when it sanctions conduct before the appellate court that

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the appellate court itself has the authority to sanction under the
appellate rules. See id. at 407-09. This court denied Manion's
motion for sanctions, pursuant to Rule 38 of the Federal Rules
of Appellate Procedure, for the interlocutory appeal of the
sanctions award. See Manion v. Am. Airlines, Inc., No. 02-7110,
Order, 2002 WL 31818922 (D.C. Cir. Dec. 12, 2002). This is
the end of the matter.
"The knowledge that, after an unsuccessful appeal of a . . .
sanction, the district court that originally imposed the sanction
would also decide whether the appellant should pay his
opponent's attorney's fee would be likely to chill all but the
bravest litigants from taking an appeal." Cooter & Gell, 496
U.S. at 408. We therefore join several of our sister circuits in
holding that a district court may not award the cost of
interlocutory appellate proceedings as part of a sanctions award
under § 1927. See, e.g., Morris v. Peterson, 871 F.2d 948, 951
(10th Cir. 1989) ("[T]he determination of the right to sanctions
. . . for conduct during an appeal is reserved to the appellate
court, although it may allow the trial court to fix the amount of
the fees and costs."); cf. Conner v. Travis County, 209 F.3d 794,
798-802 (5th Cir. 2000) (district court erred in imposing
sanctions for filing interlocutory appeal). But see United States
v. Blodgett, 709 F.2d 608, 610 (9th Cir. 1983) (finding that the
district court had the authority to sanction counsel for filing a
frivolous appeal).
Finally, Krieger contends that § 1927 does not authorize
compensation for litigation costs pertaining to Manion's motion
for sanctions before the District Court. See Appellant's Br. 21-
23. Manion again counters that this argument was not raised
below. Krieger had argued before the District Court that
compensation for litigation costs incurred following the order
granting sanctions was not sanctionable absent an independent
finding of sanctionable conduct. See Def.'s Opp'n, App. 157.
The argument embraces his point on costs regarding the motion

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for sanctions. Although we conclude that the argument was
preserved, we are not persuaded that it has merit in this case.
The disputed costs arose in the context of Manion's defense
to Krieger's opposition to the motion for a mistrial. As Krieger
concedes, a new trial is not a sanction. See FED. R. CIV. P. 59(a)
(new trials); Appellant's Reply Br. 7. It would be a closer
question if the disputed expenses were related to time spent in
a separate proceeding devoted solely to Manion's defense to
Krieger's opposition to sanctions. We need not decide that
question, however, because the expenses here arose in
connection with Manion's simultaneous defense of the motion
for a new trial. It would be an idle gesture to attempt to separate
time related to defending the motion for a new trial and
defending against the opposition to sanctions in the trial court.
We therefore affirm the portion of the sanctions award that
compensates Manion for these costs.
In sum, we affirm the sanctions award, with the exception
of the components pertaining to Manion's time ($2,600.00) and
proceedings before this court ($3,217.50). We vacate the award
with respect to these two components.
III. CONCLUSION
Consistent with this opinion, the District Court's sanctions
award is hereby affirmed in part and reversed in part. The case
will be remanded to the District Court so that it can adjust the
sanctions award as required by this decision.
So ordered.

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