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For the third time, attorney H. Francis deLone Jr. has been hit with sanctions under Rule 11 by a federal judge for pursuing a lawsuit premised on a theory that has been squarely rejected by the 3rd U.S. Circuit Court of Appeals. The district judge said that deLone persisted in arguing the legal theory even though he was the litigator in the case where the 3rd Circuit rejected it. In a 17-page opinion in Harris v. SEPTA, U.S. District Judge John R. Padova found that deLone never should have filed a civil rights suit on behalf of a SEPTA worker who was fired for testing positive for cocaine because the theory of the case has been rejected by the 3rd Circuit in two of deLone’s prior cases — Bolden v. SEPTA and Dykes v. SEPTA. “Mr. deLone’s failure to so much as acknowledge the 3rd Circuit’s controlling holdings in Bolden and Dykes, which Mr. deLone himself litigated, and which were again brought to his attention by defense counsel … is inexcusable,” Padova wrote. Padova noted that deLone had been sanctioned by U.S. District Judge Eduardo C. Robreno in a similar case, Loftus v. SEPTA, in which the plaintiff claimed that he was illegally fired for failing a drug test. In his 1998 decision in Loftus, Robreno hit deLone with a $4,000 sanction under Rule 11 for refusing to drop the case after the 3rd Circuit’s decision in Dykes. “By failing to concede that the result in Dykes v. SEPTA doomed this case and by failing to withdraw it, Mr. deLone acted in willful bad faith,” Robreno wrote. Padova found that Loftus wasn’t the first case in which deLone was sanctioned for pressing forward despite losing a nearly identical case at the court of appeals. In 1992, Padova said, deLone was sanctioned in Morris v. Orman. “In Morris, just as here, Mr. deLone filed the lawsuit ‘bottomed on the very same bases that [the district court] and the 3rd Circuit had rejected’ in a prior case also litigated by Mr. deLone. Moreover, in Morris, just as in this case, Mr. deLone never brought the earlier dispositive case law to the court’s attention,” Padova wrote. “This history of improper behavior weighs heavily toward imposing significant sanctions in this case,” Padova wrote. DeLone, a solo practitioner, did not return several calls to his Wayne, Pa., office. In the Harris case, deLone filed a civil rights claim on behalf of Terry Harris, alleging that he was illegally fired from his job with SEPTA in December 2003 after he tested positive on a drug test. The suit alleged that Harris “does not use cocaine and had not taken any cocaine at any time near the time of the test SEPTA claimed to be positive.” It also alleged that “SEPTA’s claim that plaintiff’s drug test was positive was erroneous,” and that Harris’ supervisor “had no probable cause for testing plaintiff for illegal drugs.” As a result, the suit alleged, SEPTA’s testing of Harris for illegal drugs “was not permissible under SEPTA’s random drug testing program.” And after Harris was fired, the suit said, SEPTA failed to provide him with “an appropriate forum for contesting SEPTA’s improper testing of him for illegal drugs.” SEPTA’s lawyers — Scott A. Mayer and Richard S. Meyer of Blank Rome — moved for dismissal of the suit, arguing that deLone had “artfully omitted” key facts in the complaint. Although it was never mentioned in the suit, the defense team said, Harris had challenged his firing in a union grievance — contesting both the results of the drug test and whether SEPTA had any “reasonable suspicion” to require that he take the test. The defense team noted that Harris’ union, Local 234 of the Transportation Workers Union, had supported him in the grievance, but opted not to pursue an arbitration after Harris’ firing was upheld. Padova found that, due to the controlling precedents in Bolden and Dykes, Harris had no valid claims. In Bolden, Padova said, the 3rd Circuit upheld SEPTA’s drug testing program after finding that it was agreed to by the union in a collective bargaining agreement. In Dykes, the 3rd Circuit expanded on Bolden and held that SEPTA workers are required to pursue union grievances if they want to challenge whether there was “reasonable suspicion” that they were using drugs, and that courts are bound by the factual issues decided in those grievance proceedings. DeLone had urged Padova not to dismiss Harris’ Fourth Amendment claim, arguing that his theory of the case was supported by the U.S. Supreme Court’s 1998 decision in Wright v. Universal Maritime Service Corp. The decision in Wright, deLone argued, implicitly overruled Bolden and Dykes. But Padova found that deLone’s argument was “severely flawed.” In Wright, the plaintiff claimed that stevedore companies discriminated against him in violation of the Americans with Disabilities Act by pursuing his claims in an arbitration. The lower courts had enforced the arbitration clause, but the Supreme Court reversed and held that any requirement to arbitrate such a statutory claim “must be particularly clear,” because “the right to a federal judicial forum is of sufficient importance to be protected against less-than-explicit union waiver.” DeLone argued that Wright implicitly overrules Bolden and Dykes and permits SEPTA employees to bring Section 1983 claims because SEPTA’s collective bargaining agreement does not contain an explicit judicial forum waiver for Section 1983 claims. Padova disagreed, saying “neither Bolden nor Dykes stand for the proposition that the [collective bargaining agreement] waives the union members’ right to a judicial forum for the resolution of their constitutional claims.” Instead, Padova said, the 3rd Circuit “merely held that (1) individual employees are bound by their bargaining unit’s express consent to drug testing, Bolden; (2) in ruling on a union member’s Fourth Amendment claim, federal courts are bound by certain factual questions resolved through the grievance procedure, Dykes; and (3) the … grievance and arbitration procedure satisfies the 14th Amendment due process requirements.” Since deLone had represented the plaintiff in both Bolden and Dykes, Padova found that he “should be intimately familiar with these decisions.” As a result, Padova said, “Mr. deLone should thus have realized that Bolden and Dykes did not determine that the plaintiffs were required to vindicate their constitutional rights through arbitration, but rather that the plaintiffs’ constitutional rights had simply not been violated.” Padova found that deLone had violated his “duty of candor to the court” by failing to disclose in the suit that Harris was bound by the collective bargaining agreement — a fact that Padova said deLone “knew to be an important consideration under Bolden, Dykes, and even under his interpretation of Wright.” As a result, Padova said, “it was unreasonable of Mr. deLone to file the instant complaint, which he should have known to be without any legal basis,” and that “it was equally unreasonable of Mr. deLone to ignore the established case law of this judicial circuit.” If deLone had conducted a “reasonable investigation of the law,” as Rule 11 requires, Padova said, “the complaint’s frivolousness and the flaws of his legal reasoning in opposition to defendants’ motions to dismiss and for sanctions would have, or should have, become apparent to him.” But before deciding how much to sanction deLone, Padova said he needed more information — including deLone’s financial records. In deciding the amount to impose as a sanction, Padova said, courts “consider mitigating factors such as whether the attorney has a history of this kind of behavior, the defendants’ need for compensation, the degree of frivolousness, and the willfulness of the violation, and undertake an investigation into an attorney’s ability to pay.” Padova ordered the defense team to file a detailed bill within 10 days reflecting the attorney fees and costs incurred in seeking dismissal of the suit and in seeking the sanctions. He also ordered deLone to file a response “addressing the amount of sanctions that would serve as an adequate deterrence in this case and a sufficiently detailed financial affidavit so that the court can consider Mr. deLone’s ability to pay.” In the Loftus case, deLone was spared the full brunt of the potential sanctions when Robreno declined to award SEPTA and the union the full $23,565 in attorney fees they had expended in continuing to defend the case after the 3rd Circuit’s decision in Dykes. Robreno found that since deLone is a solo practitioner who represents mostly plaintiffs in civil rights actions, he should be ordered to pay just $2,000 to each defendant.

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