Yes, a judge can do this, but not under the specific law everyone was arguing about. That law, § 1927, only lets judges make lawyers pay for small 'costs' like filing fees, not expensive attorney's fees. However, judges have an 'inherent power'—a basic authority they have to control their courtroom and punish bad behavior. If a lawyer is found to be acting in 'bad faith' (intentionally being dishonest and obstructive), the judge can use this inherent power to make that lawyer personally pay the other side's legal bills. The case has to go back to the first judge to decide if the lawyers were actually acting in bad faith.

Yes, and the original law (§ 1927) is enough to do it. The law says a misbehaving lawyer can be forced to pay for extra 'costs.' In civil rights cases, other laws say that attorney's fees are considered part of the 'costs.' So, it's simple: if a lawyer in a civil rights case creates extra costs, including attorney's fees, by being difficult, the judge can make that lawyer pay for them.

I agree that judges have the 'inherent power' to punish bad lawyers, but I disagree about the specific law. The majority's decision lets a bad lawyer off the hook and makes their innocent client suffer the consequences. It makes more sense to say that the law about 'costs' includes attorney's fees in cases like this.

I think the law is clear: if another rule says attorney's fees are 'costs,' then the law for punishing lawyers should include them. I'm also very worried about the majority's idea of a vague 'inherent power' to make lawyers pay damages. It seems like judges are just making up the rules as they go, and that's dangerous.

I conclude that a specific law, 28 U.S.C. § 1927, does not allow courts to make lawyers pay the other side's fees for purposely making a case take longer. This is because the law lists what counts as 'costs,' and fees aren't on that list. But courts do have a built-in power to order lawyers to pay fees if the lawyers act really badly on purpose. Courts need this power to make sure cases are handled fairly and to keep their authority. But courts should be very careful about using this power. They should give lawyers a chance to explain themselves at a hearing first. Another rule, Rule 37, does let courts make lawyers pay fees for not cooperating in discovery - the part where each side gets information from the other. Courts should use this to punish and stop bad behavior in discovery.

I disagree. I think the court was right to use the civil rights laws to decide the lawyers should pay fees. Those laws say fees count as 'costs' in civil rights cases. The law about making lawyers pay for bad behavior (§ 1927) doesn't say what counts as 'costs,' so we have to look at other laws. The lower courts found the lawyers' behavior was bad enough to make them pay under § 1927.

I partly agree and partly disagree with the Court. I'm worried the Court's reading of § 1927 means lawyers who do bad things still won't have to pay, and instead their clients will, even when the clients did nothing wrong. That's not fair. But I agree courts have built-in power to make misbehaving lawyers pay in some cases.

I think § 1927 does let courts make lawyers pay fees for purposely dragging out a civil rights case. The civil rights laws say fees are 'costs,' and § 1927 lets courts make lawyers pay any 'costs' a party could pay. It shouldn't matter that the rules for making parties pay fees are different for the two sides in civil rights cases. § 1927 is about punishing lawyer behavior, no matter who wins. I agree with the Court about Rule 37 but not about § 1927. I also doubt courts have built-in power to make lawyers pay the other side.

Because inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion

A district court has the inherent power to sanction a party when that party exhibits bad faith, including the party's refusal to comply with the court's orders.

A court may exercise its inherent power to sanction when a party has "acted in bad faith, vexatiously, wantonly, or for oppressive reasons," or when the conduct was "tantamount to bad faith."

The Court's inherent power is that which is necessary to the exercise of all others, including to protect the due and orderly administration of justice and maintain the authority and dignity of the Court.

This Court has the "inherent power... to levy sanctions in response to abusive litigation practices."

However, "Like other sanctions, attorney's fees certainly should not be assessed lightly or without fair notice and an opportunity for a hearing on the record."

"Rule 37 sanctions must be applied diligently both to penalize those whose conduct may be deemed to warrant such a sanction,[and] to deter those who might be tempted to such conduct in the absence of such a deterrent."

In Piper, the Supreme Court declared that federal courts have the inherent power to assess attorney's fees against counsel who "willfully abuse judicial processes."

"The inherent powers of federal courts are those that `are necessary to the exercise of all others.'"

Pursuant to Rule 37 (b), the court is authorized to impose sanctions against parties or counsel, " `including attorney's fees,'caused by the failure to comply with discovery orders. "

No, as to 28 U.S.C. § 1927, but Yes, as to the court's inherent power. A federal court cannot use § 1927 to assess attorney's fees against counsel because the term 'costs' in that statute is limited to the taxable costs enumerated in 28 U.S.C. § 1920. However, a court may use its inherent power to assess attorney's fees against counsel who have acted in bad faith.

The Court reasoned that § 1927, first enacted in 1813 and re-enacted in 1853, must be read in conjunction with the contemporaneous statutes that defined taxable costs, which did not include attorney's fees under the established 'American rule.' The fee-shifting provisions in modern civil rights statutes (e.g., § 1988), which define attorney's fees 'as part of the costs,' do not amend the meaning of 'costs' in § 1927. Those statutes are concerned with the merits of a case and apply to parties, whereas § 1927 is concerned only with attorney misconduct. However, the Court affirmed that federal courts possess 'inherent power' to manage their own affairs and sanction abusive litigation practices. This power includes the 'bad-faith exception' to the American rule, which allows a court to assess attorney's fees against a party or their counsel for conduct during litigation that is vexatious, wanton, or for oppressive reasons. Because the district court did not make a specific finding of bad faith, the case was remanded for that determination.

Yes. A court may assess attorney's fees against counsel under 28 U.S.C. § 1927 in cases where an underlying statute defines attorney's fees as part of the costs. Section 1927 allows a court to tax 'excess costs' against a misbehaving attorney. What constitutes 'costs' depends on the type of action. In this civil rights action, statutes like 42 U.S.C. § 1988 explicitly make a 'reasonable attorney's fee as part of the costs.' Therefore, when an attorney's vexatious conduct increases those costs, § 1927 provides the authority to make the attorney personally liable for them.

The opinion joins the majority's conclusion regarding the court's inherent power but dissents from its interpretation of 28 U.S.C. § 1927. The majority's narrow reading of § 1927 penalizes an innocent client for their attorney's misconduct while insulating the wrongdoing attorney. This outcome clashes with common sense, basic fairness, and the plain meaning of the statute, which should allow attorney's fees to be assessed as 'costs' when another statute defines them as such.

The opinion dissents from the majority's construction of § 1927 and its holding on inherent power. The straightforward language of § 1927 allows a court to assess against counsel any item of cost that could be assessed against a party. Since civil rights statutes make attorney's fees an item of 'cost,' § 1927 should apply. Furthermore, the opinion expresses 'gravest doubts' about the Court's reliance on a vaguely defined 'inherent power' to order a lawyer to pay damages to an opponent, viewing it as 'standardless judicial lawmaking.'

I conclude that federal courts do not have statutory power under 28 U.S.C. § 1927 to tax attorney's fees as 'costs' against counsel for vexatiously multiplying proceedings. This is because the statute itself defines the costs that may be recovered, and attorney's fees are not included. However, federal courts do have inherent power to assess attorney's fees against counsel in cases of bad faith, vexatious, wanton, or oppressive conduct. This inherent power is necessary to the exercise of all others, to protect the due and orderly administration of justice, and to maintain the authority and dignity of the court. But such sanctions, including attorney's fees, should not be assessed lightly and require fair notice and an opportunity for a hearing on the record. Additionally, Federal Rule of Civil Procedure 37 permits sanctions, including attorney's fees, for failure to comply with discovery orders. These sanctions must be applied diligently both to penalize and deter misconduct in discovery.

I dissent because I believe it was proper for the District Court to look to the civil rights attorney's fee statutes, 42 U.S.C. §§ 1988 and 2000e-5(k), to determine whether attorney's fees were assessable as part of the excess costs under 28 U.S.C. § 1927. Section 1927 does not itself define the costs an attorney may be forced to pay, so one must look elsewhere. In civil rights actions, §§ 1988 and 2000e-5(k) define attorney's fees as an element of costs. So in this case, the attorney's fees were properly included in the excess costs assessed against respondents under § 1927. The standard for such an award against an attorney is that in § 1927 itself - that the attorney multiplied proceedings so as to increase costs unreasonably and vexatiously. Both lower courts found that standard was met here.

I do not join Part II-A of the Court's opinion regarding 28 U.S.C. § 1927. I am concerned that the Court's analysis means that § 1927 does not permit imposing the excess attorney's fees generated by an attorney's vexatiousness on that attorney when those fees are otherwise shifted to the attorney's innocent client under the civil rights fee-shifting statutes. This construction penalizes the innocent client while insulating the wrongdoing attorney, which clashes with basic fairness. However, I join Part III recognizing federal courts' inherent power to assess fees against vexatious counsel, as the opinion provides persuasive reasons for this.

I believe 28 U.S.C. § 1927 is broad enough to encompass assessing attorney's fees against counsel in a civil rights action when that attorney unreasonably and vexatiously multiplies the proceedings. The civil rights statutes authorize recovery of attorney's fees 'as part of the costs,' and § 1927 allows assessing against counsel any cost that could be assessed against a party. The fact that the standards for recovering fees differ for plaintiffs and defendants in civil rights cases is not relevant, as § 1927 focuses on attorney misconduct regardless of who prevails. While I agree with the Court's Rule 37 discussion, I dissent from its narrow construction of § 1927. I also doubt the Court's inherent power holding, as I question a court's inherent authority to order an attorney to pay damages to an opposing party.

Roadway Express, Inc. v. Piper

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