Russell E. Adkins, MD v. Arthur P. Christie, (11th Cir. 2007)

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[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APR 11, 2007

THOMAS K. KAHN

N o . 06-13057

CLERK

D . C. Docket No. 04-00080-CV-WDO-5

R U S S E L L E. ADKINS, MD,

Plaintiff,

versus

ARTHUR P. CHRISTIE, Individually,

and in his Official Capacity as

the Administrator of Houston Medical

Center,

ANTHONY L. ALFORD, Individually as

in his Official Capacity as Executive

Director for Medical Affairs of Houston

Medical Center,

DANIEL A. DEIGHTON, Individually and

in his Official Capacity as Chief of

Staff and in his Official Capacity as a

Member of the Medical Executive Committee

at Houston Medical Center,

FREDERICK W. JENNART, Individually and

in his Official Capacity as a Member of

the Medical Executive Committe at Houston

Medical Center,

DAVID N. HARVEY, MD, Individually, and in his

Official Capacity as a Member of the Medical

Executive Committee at Houston Medical

Center, et al.,

Defendants-Appellees, GEORGE W. MCGRIFF, ERIC E. WYATT, Movants-Appellants.

A p p e al from the United States District Court fo r the Middle District of Georgia (A p ril 11, 2007) B efo re EDMONDSON, Chief Judge, BIRCH and WILSON, Circuit Judges.

P E R CURIAM: G eo rg e McGriff III and Eric Wyatt, attorneys for Russell Adkins in his civil rig h ts action against the Houston Medical Center and certain of its physicians (co llectiv ely "HMC"), appeal the imposition of sanctions against them. The d is tr ic t court referred the lawyers to the Attorney Discipline Grievance Committee an d imposed sanctions in the form of attorneys fees for their alleged bad-faith co n d u ct in representing parties with conflicting interests. McGriff and Wyatt c o n te n d that they were unaware of the conflict, and that sanctions and disciplinary m easu res are thus inappropriate. They further allege that they were denied due p r o c e ss because they lacked sufficient notice of the possible penalties against them a n d because they were denied the opportunity to call and cross-examine witnesses in order to challenge HMC's assertion that they acted in bad faith.

F irst, we note that the district court's decision to refer McGriff and Wyatt to th e disciplinary committee is beyond the scope of our review. A referral cannot be c h a ra cte riz ed as a sanction or a disciplinary measure. Through a referral, a district c o u r t simply indicates that in its view, conduct of the attorneys merits further ex am in atio n by the disciplinary committee, which may or may not result in a san ctio n . As such, a referral is not a reviewable measure. U.S. v. McCorkle, 321 F .3 d 1292, 1298-99 (11th Cir. 2003) (agreeing that a decision to refer attorneys to th e state disciplinary committee was not an appealable judgment of contempt).

S e co n d , we note that when an attorney acts in bad faith, a federal court p o ssesses the inherent power to impose sanctions. Chambers v. NASCO, Inc., 501 U .S . 32, 43, 111 S. Ct. 2123, 2132, 115 L. Ed. 2d 27 (1991). However, the court m u st afford the sanctioned party due process, "both in determining that the r eq u is ite bad faith exists and in assessing fees." In re Mroz, 65 F.3d 1567, 1575 ( 1 1 th Cir. 1995). Due process mandates that an attorney be given fair notice that h is conduct may warrant sanctions and the reasons why. Donaldson v. Clark, 819 F .2 d 1551, 1559-60 (11th Cir. 1987). In addition, the attorney must be given a ch an ce to respond to the allegations and justify his or her actions. In re Mroz, 65 F .3 d at 1575-76. We find that the requirements of due process were not satisfied in th is case. Specifically, we find that notice of a hearing on their Motion to W ith d raw was insufficient to provide McGriff and Wyatt with notice of the p o ssib ility of sanctions. Further, we find that they were denied the opportunity to p resen t their case because they were unable to cross-examine S.K. Accordingly, w e vacate the decision below and remand for further consideration by the district c o u r t.

V A C A T E D AND REMANDED.

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