ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil No. 83-0310).
Before: GIBBONS, BECKER and ROSENN, Circuit Judges
This appeal presents two questions (1) whether the United States can recover attorneys fees and costs when the United States provides a defense for a federal official sued individually for activities in the course of the official's federal employment? and (2) if so, was an award of attorneys fees and costs against a litigant and his attorney appropriate in this case? The initial question is one of first impression in this court, while the second question involves the application of settled legal principles to the facts before us. The district court answered both questions affirmatively and ordered the payment of $4,130.00 in attorneys fees. We affirm.
In February 1983 the United States District Court, with Judge Malcolm Muir presiding, adjudicated a criminal contempt proceeding against Peter T. Campana, Esq. for his failure to comply with scheduling orders in a pending civil case. The proceeding resulted in a finding that Peter T. Campana was not guilty of criminal contempt. The opinion disposing of the criminal contempt proceedings, however, contained unflattering references to Peter T. Campana's professional performance. The unflattering references were printed in the Williamsport Sun Gazette, a newspaper that circulates in the area in which Campana practices.
The day after the newspaper published the quotation from Judge Muir's opinion Peter T. Campana, represented by Ambrose R. Campana, Esq., commenced a libel action against Judge Muir in the Court of Common Pleas of Lycoming County by issuing a writ of summons. Shortly thereafter the United States Attorney's Office undertook the defense of the libel action. An assistant United States Attorney informed Ambrose R. Campana that Judge Muir would raise the defense of absolute judicial immunity. Ambrose R. Campana acknowledged awareness of that defense, but responded that he thought Judge Muir would waive it and fight the libel case on the merits.
The Common Pleas Court action was removed to federal district court pursuant to 28 U.S.C. § 1442 (1982) on March 8, 1983. Apparently the practice in Common Pleas did not require filing of the complaint at the commencement of the suit, for on April 22, 1983 a two-count complaint for libel and malicious prosecution was filed in the district court. By then it was clear that Judge Muir intended to rely on absolute judicial immunity. An assistant United States Attorney had so informed Ambrose R. Campana. The United States Attorney's Office had also made Judge Muir's intention clear in motions for protective orders with respect to attempts by the Campanas to depose Judge Muir in the libel action against him, and in a separate libel action against the Williamsport Sun Gazette. The undisputed evidence is that the Campanas persisted in prosecuting the action in hopes of taunting Judge Muir into waiving what they both knew was an unqualified immunity defense.
On May 11, 1983 the United States Attorney filed, on Judge Muir's behalf, a motion to dismiss, or for summary judgment, on immunity grounds. In resisting that motion the Campanas argued that
[t]he last part, IV of Defendant's argument, is to say the least, ludicrous. The Defendant desires this case to be dismissed on the grounds of judicial immunity. Yet, he admonishes all who read it that it is not an admission that his statements weren't true. The Defendant would have his cake and eat it too. He importunes the reader that his assertions in his eleven page Opinion are true. Why, then, does he not desire to put them to a jury.
(Docket Item #20). Thus in face of a pleading that unequivocally asserted a defense to which they had no legal rejoinder the Campanas persisted in their effort to taunt Judge Muir into waiving his absolute immunity.
On July 11, 1983 the district judge to whom the case was assigned granted summary judgment in favor of Judge Muir on immunity grounds. In the course of the opinion granting summary judgment the court noted that Judge Muir's comments about Peter T. Campana in the contempt opinion were neither untrue nor maliciously motivated, but were entirely justified. The Campanas moved to have these comments stricken from the opinion and, when that motion was denied, appealed unsuccessfully to this court. See Campana v. Muir, 738 F.2d 420 (3d Cir. 1984) (memorandum opinion), aff'g, 585 F. Supp. 33 (1983). In connection with the appeal to the Third Circuit the Campanas refused to include in the appendix any of the appellee's designations. As a result, the United States filed a Petition for Permission to File a supplemental appendix and the supplemental appendix was filed.
After the Third Circuit affirmed the order denying the Campanas motion to modify the summary judgment opinion, the United States attorney filed a motion for fees and costs under 28 U.S.C. § 1927 (1982) and pursuant to the inherent powers of the court to award fees for bad faith and vexatious litigation. The United States Attorney supported the application with proof of the number of hours worked, and of the reasonableness of a rate of $100 an attorney time. The Campanas did not contest either the number of hours expended or the reasonableness of the hourly rate. An evidentiary hearing was held, in which both Campanas conceded that they were at all times aware of the applicability of the defense of absolute immunity. Their explanation for persisting in the action was the stated belief that the defense would not be raised, or would be waived. The only basis for such a belief, if it was sincerely held, was the hope that they could use the lawsuit, and their out-of-court statements, to taunt Judge Muir into waiving the defense.
The district court found that "[i]n reviewing the entire record it is clear that both P. Campana and and A. Campana were motivated by vindictiveness in the filing and prosecution of this case. " Campana v. Muir, 615 F. Supp. 871, 878 (M.D. Pa. 1985). The court also found that they had by unyielding and inflexible positions unnecessarily multiplied the proceedings, id. at 879-80, and increased the cost, id. at 880. Finally the court found that Peter T. Campana, the client in the libel suit, and Ambrose R. Campana, the representing attorney, shared equal responsibility. Id. at 882. Thus the fee award was made against them jointly and severally. Id. The court ...