The opinion
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-21091
Summary Calendar
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EVERETT E. EDENS, JR.,
Plaintiff-Appellee,
versus
JESSE BROWN, Sec. Dept. Vet. Affairs, ET AL.,
Defendants,
ROBERT L. BERNARD,
Movant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(CA-H-93-1615)
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August 2, 1996
Before DAVIS, JONES, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Robert L. Bernard appeals the sanction imposed by the trial
court, for violation of its order. We AFFIRM.
I.
Everett E. Edens, pro se, filed an employment discrimination
action against Jesse E. Brown, Secretary, Department of Veterans
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
Affairs (the VA). The court granted Edens’ application to proceed
in forma pauperis and later appointed counsel for him.
During the jury trial, when the VA's attorney, Bernard, began
to question Edens about his attorney's fee, the court asked Bernard
“[w]hat possible purpose could be served by revealing to the jury
that this attorney was appointed" and that Edens had no obligation
to pay for such services. The court stated that, pursuant to the
statute under which Edens’ attorney was appointed, recovery of
attorney's fees is allowed and stated: “No, you may not question
Mr. Edens about that. No, you may not make any mention of that to
the jury whatsoever."
Nevertheless, at the end of his closing argument, Bernard
stated to the jury that “taxpayers are paying for you to be here,
for me to be here, for the court and all the people to be here, to
listen to Mr. Edens. And even pay for his lawyer.” The court
found that Bernard violated its order “not to make any reference
whatsoever to who must pay for Edens' counsel, to the fact that
Edens' counsel is court-appointed, or that Edens is not obligated
to pay his counsel". The court declared a mistrial and assessed
sanctions against the VA and Bernard in the amount of $3,000, to
cover Edens’ reasonable and necessary attorney’s fees, for
violation of an order of the court.
II.
2
The imposition of attorney’s fees as a sanction is reviewed
for an abuse of discretion. O’Neill v. AGWI Lines, 74 F.3d 93, 96
(5th Cir. 1996). We are advised that the VA has paid the sanction.
But, because of other obvious adverse effects on Bernard, we do not
consider the issue moot.
A.
Bernard asserts first that the district court erred by
imposing a sanction under FED. R. CIV. P. 37(b), based on an alleged
violation of the court's order not related to discovery. We need
not address this issue, because, obviously, the court had the
inherent power to impose the sanction. “Courts of justice are
universally acknowledged to be vested, by their very creation, with
power to impose silence, respect, and decorum, in their presence,
and submission to their lawful mandates." Chambers v. NASCO, Inc.,
501 U.S. 32, 43 (1991) (international quotation marks omitted)
(quoting Anderson v. Dunn, 19 U.S. 204, 227 (1821)). Along that
line, “the district court possesse[s] the inherent power to assess
attorney's fees as sanctions for bad-faith conduct in litigation".
Citizens Bank & Trust Co. v. Case, 937 F.2d 1014, 1023 (5th Cir.
1991). Among other things, “[a] court may assess attorney's fees
as a sanction for the willful disobedience of a court order."
Chambers, 501 U.S. at 45 (internal quotation marks omitted).
B.
3
Bernard's assertion that the court's instruction was unclear
and ambiguous is without merit. And, as hereinafter discussed, his
claims that the court failed to make findings of fact and
conclusions of law before imposing the sanctions, that he did not
violate the order intentionally or in bad faith, and that the court
erred by not imposing a less severe sanction are also without
merit. The court found that Bernard's closing argument statement
“directly violated the Court Order and could only have been made
with the intent to prejudice and inflame the jury". It concluded
that, “in the light of ... Bernard's actions during the entire
trial, Mr. Bernard's statement regarding Edens' attorney fees was
made in bad faith and constituted willful misconduct on the part of
Bernard, justifying severe remedies". It concluded further “that
such statement so prejudiced the jury that a mistrial was warranted
and was declared after two days of trial ... [and] that good cause
has been shown for the imposition of sanctions against both
Defendant and Defendant's counsel". As stated, we find no abuse of
discretion.
C.
Finally, Bernard asserts that the court committed a clear
error of law by ruling that, in a 1991 Civil Rights Act lawsuit,
attorneys' fees are to be determined by the jury, and that the
sanctioning process violated due process of law. Needless to say,
any error in ruling that the jury would determine attorneys' fees
does not excuse the blatant violation of the court’s order.
4
Likewise, the court presented Bernard an opportunity to be heard;
and its sanctioning process was in conformity with due process
requirements.
III.
For the foregoing reasons the sanction is
AFFIRMED.
5