Sess. 8). Unlike Rule 11 sanctions which focus on particular papers, the inquiry under § 1927 is on a course of conduct. Id. at 1346. Bad faith "is the touchstone of an award under this statute." Id. at 1345 (citation omitted).
The inherent power doctrine, also known as the bad faith exception to the American Rule against fee shifting, derives from a court's need to manage its affairs so as to achieve an orderly and expeditious resolution of cases. Id. at 1345 (citing Chambers v. NASCO, Inc., 501 U.S. 32, 111 S. Ct. 2123, 2132, 115 L. Ed. 2d 27 (1991) (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 8 L. Ed. 2d 734, 82 S. Ct. 1386 (1962)). Under the "inherent power" doctrine, attorneys' fees can be imposed when the losing party has continued an action "in bad faith, vexatiously, wantonly, or for oppressive reasons." Id. (citing Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240, 258-59, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975)). The Supreme Court and the Second Circuit have long cautioned that the inherent power doctrine should be used with "restraint and discretion." See Chambers, 111 S. Ct. at 2137. Thus, the Second Circuit requires (1) clear evidence that the challenged actions were entirely without color and taken for improper purposes such as harassment or delay; and (2) a high degree of specificity in the district court's factual findings before sanctions may be imposed under the inherent power doctrine. See Int'l Bhd. of Teamsters, 948 F.2d at 1345 (citations omitted).
I find that sanctions under § 1927 are appropriate in the instant action.
In his papers, Freedman does not deny that he never arranged for a telephonic hearing with the INS. As I repeated at the September 27 hearing, the decisive factor in my decision to order a stay of deportation was my belief that the INS knew Bowler was in New York and that a 'snafu' or some technical error had deprived Bowler of his right to be heard. Freedman knew that this was a decisive factor in my decision to issue an injunction at the August 24 hearing. I specifically referenced his misrepresentation and my reliance upon it at the August 30 hearing. See, supra, at 12. Freedman's bad faith is further illustrated by Berowitz's phone call to FTF, threatening it with contempt.
At the August 30 hearing, Freedman admitted the call was made but denied that anyone "threatened contempt in your name ... They [FTF] say they have a voice mail ... let them give you a transcript of the voice mail." See August 30 Hearing Transcript at 13-14. The government accepted Freedman's suggestion, and set forth a transcription of FTF's answering machine tape in Mancini's declaration, which was prepared and executed within ten days of the August 30 hearing. See Mancini Decl. at P 9. Freedman's papers fail to address, let alone challenge, the accuracy of the transcription. In fact, Freedman's papers are silent on this issue. Nothing in the record suggests any reason why I should not credit the facts as set forth in Siegel's and Mancini's declarations.
In short, Freedman filed a baseless application for a stay which he continued to advocate improperly even after any reasonable inquiry would have led a practitioner acting in good faith to conclude that he or she had no legal or factual basis for their position. Freedman has not offered an even plausible excuse for his conduct in continuing to advocate his application after it became clear that he had no basis for it. An attorney with Freedman's expertise in immigration law could only act in bad faith when he asks the court for repeated adjournments to file supplemental papers to his admittedly incomplete initial pleadings and then fails to do so. Collectively, the actions described above demonstrate the sort of bad faith and improper course of conduct required to impose sanctions under § 1927.
Although I do not impose sanctions based upon the following issues, I note that Freedman made a series of half-truths regarding the basis for jurisdiction in the instant action. Freedman stated that Bowler was in New York when the Order to Show Cause was filed. See August 24 Hearing Transcript at 9-10. While this may have been true on August 19, it is dubious that Freedman believed that Bowler was in New York when the August 24 Order to Show Cause was filed. Freedman clearly knew that Bowler would be transported by FTF to Oakdale. See Siegel Letter. There is some evidence suggesting that Freedman received a phone call on August 24 from FTF informing him that Bowler was in Oakdale. Furthermore, Freedman's numerous representations that the focus of the instant action was to review a non-final order smack of bad faith, and at best reflect an extraordinary disregard of the law and the procedural posture of Bowler's case.
The government requests sanctions in the amount of $ 5,825.00. The government calculated this amount by determining the number of hours spent by various members of the United States Attorney's Office, and then charging the rate at which each individual would charge at a New York law firm of comparable size and expertise. See Loprest Decl. at PP 17-25. In his papers, Freedman argues that no monetary sanctions should be imposed because he has resigned from the bar, has psychological problems, and is on the verge on bankruptcy. Other than his declarations, which in the past have ranged from misleading to completely false, Freedman has not provided me with any evidence that support his pleas for leniency and I do not credit his claims. See, e.g., Undated Rebuttal Affirmation of Paul Freedman at P 5 (stating he cannot afford to pay even $ 1,000 in sanctions, but not proffering a sworn statement from an accountant or tax records).
In awarding attorney's fees as a sanction, the Second Circuit has cautioned that a court should consider the financial circumstances of the sanctioned party. See Sassower v. Field, 973 F.2d 75, 81 (2d Cir. 1992) (citations omitted), cert. denied, 123 L. Ed. 2d 497, 113 S. Ct. 1879 (1993). While I have no doubt that Freedman's income will have dropped if he in fact has resigned from the bar, I note that by Freedman's own admission he was making $ 778 per hour while he was practicing and I have no credible evidence before me that he did not generate enough assets to justify a reasonable sanction. See Declaration of Paul Freedman, sworn to December 14, 1994, at P 4. Nevertheless, I have carefully reviewed the government's papers, and find that its request for attorney's fees is overbroad, and includes expenses for time occasioned by burdensome bureaucratic systems which should not be imposed upon Freedman. I believe a fair sanction, in light of the outrageous course of conduct pursued by Freedman and the resources the government had to expend as a result of such actions, is an award of $ 2,500.00.
For the reasons discussed above, petitioner's and respondent's motions for sanctions pursuant to Federal Rule of Civil Procedure 11 are denied. Sanctions, in the form of attorney's fees, are imposed against Paul Freedman pursuant to 28 U.S.C. § 1927 in the amount of $ 2,500.00. I am also referring this matter to the Grievance Committee of the Southern District of New York. The Clerk of the Court is directed to enter this memorandum opinion and order accordingly.
Dated: New York, New York
September 12, 1995