Blue v. US Department of the Army Brief of Appellants Julius L. Chambers and Ferguson, Stein, Watt, Wallas & Adkins, P.A.
Public Court Documents
October 14, 1989
Cite this item
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Brief Collection, LDF Court Filings. Blue v. US Department of the Army Brief of Appellants Julius L. Chambers and Ferguson, Stein, Watt, Wallas & Adkins, P.A., 1989. d98191f8-c99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/04c7b171-a49c-4d62-9a8a-14b2f8558b5f/blue-v-us-department-of-the-army-brief-of-appellants-julius-l-chambers-and-ferguson-stein-watt-wallas-adkins-pa. Accessed July 20, 2025.
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United States (Enurt of Appeals
for the
Jfmtrtli Itttrcuit
No. 88-1364 (Lead)
SANDRA L. BLUE,
Plaintiff-Appellant,
— against —
UNITED STATES DEPARTMENT OF THE ARMY, et a l ,
Defendants-Appellees.
IN RE: JULIUS L. CHAMBERS,
Appellant in No. 88-1379,
FERGUSON, STEIN, WATT, WALLAS & ADKINS, P.A.,
Appellant in No. 88-1377.
Appeal from the United States District Court for the Eastern District
of North Carolina, at Fayetteville, James C. Fox, Judge.
BRIEF OF APPELLANTS JULIUS L. CHAMBERS AND
FERGUSON, STEIN, WATT, WALLAS & ADKINS, P.A.
B o n n i e K a y a t t a - S t e i n g a r t
F r ie d , F r a n k , H a r r is , S h r iv e r
& J a c o b s o n
(A Partnership Including
Professional Corporations)
One New York Plaza
Newr York, New York 10004
(212) 820-8000
Attorneys for Appellant
Julius L. Chambers
Of Counsel:
J o h n S u l l i v a n
D o u g l a s H . F l a u m
T r ic ia K a l l e t t K l o s k
P e t e r L . S i m m o n s
TABLE OF CONTENTS
Page
TABLE O F AUTH ORITIES ........................................ v
ISSUES PR ESEN TED ................................................... 2
STATEM ENT OF TH E C A S E ................................... 3
The Complaints .............................................. 4
The Pretrial Orders ................................................. 6
Trials ................. 7
Settlements and Sanctions H earings.................... 10
SUMMARY O F A R G U M EN T..................................... 13
A R G U M E N T ............. ............................ 16
I. The District Court Erred in Finding That
Harris’ Claims Were F rivo lous............................. 16
A. A History of Discrimination Against Harris 16
B. Harris Could Establish a Prima Facie Case
on Her Promotion C la im s............................... 18
1. MPA 64-81 .................................................. 19
2. MPA 94-81 .................... 20
3. MPA 210-81 ............................................ .. . 21
4. MPA 196-82 and MPA 5-83 .................... 21
i
Page
C. Harris Could Establish a Prima Facie
Case on Her Job Classification Claim . . . . 23
D. Harris Could Establish a Prima Facie
Case of Discriminatory Denial of Training 25
II. The District Court Erred in Finding That
Blue’s Claims Were F r iv o lo u s ............................. 26
A. Blue’s Employment R e c o r d ........................... 29
B. The Tried Claims Presented Prima Facie
Cases of D iscrim ination ................................. 30
1. MPA 73-79 ................. 30
a. Disparate T re a tm e n t........................... 30
b. Disparate I m p a c t ...................... 33
2. MPA 303-79 ............... 36
C. Blue Could Present a Prima Facie Case on
Her Untried C laim s.......................................... 40
1. MPA 67-83 ................................. 40
2. The 1979 Discriminatory Appraisal
Adversely Affected Blue’s Chances for
Other Promotions................... 41
a. MPA 440-80............................................ 41
b. MPA 274-79....................................... 42
c. MPA 2 7 7 - 7 9 .. ........................................ 42
3. Blue’s Retaliatory Discipline Claim . . . . 43
III. The District Court Erred as a Matter of Law
in Imposing Sanctions Under Rule 11 ............. 45
A. The Evidentiary Record Shows Plaintiffs’
Claims Were Not F rivo lous................... 47
n
Page
B. The District Court Erred in Failing to
Evaluate the Pleadings and Pretrial
Orders as of the Time That They Were
S ig n e d ........... ....................................................... 49
1. The District Court’s Conclusions
Imroperly Rested on Hindsight
Determinations of Witness Credibility . 50
2. The Distrct Court Erroneously Relied
on Hindsight in Interpreting the Law
and Applied the Wrong L a w .................. 53
3. The District Court Erred in Assuming
That Dropping Claims Proves That
They Are Frivolous . . . . . . . . . . . . . . . . . 54
C. The Conduct of the Army and the District
Court Throughout the Litigation Shows
That Plaintiffs’ Claims Were Not
Frivolous........... .................................................. 55
D. The District Court Erred in Awarding the
Army Expenses for Prosecuting the
Sanctions Motions ............................................. 58
IV. The District Court Violated its Local Rules
and the Due Process Clause in Disciplining
the A ttorn eys................... 58
A. Chambers and Sumter Did Not Receive
Notice That They Might Be Disciplined . . 59
B. The Court Disregarded its Disciplinary
R u le s ........... .. ................................... 61
V. Section 706(k) of Title VII Precludes the
District Court’s Awards of Attorneys’ Fees to
the A rm y....................................................... 63
in
Page
VI. The District Court Erred in Fining the
Attorneys for the “Expenses” of the Court. . 71
A. The District Court Lacked Authority to
Impose this F i n e .......................................... 71
B. The Sanction Was a Form of Criminal
Contempt Imposed Without the
Required Procedures................................... 76
VII. The District Court Erred in Imposing
Sanctions Under its Inherent Power and
Section 1927 .......................................................... 79
A. There Was No Basis for Sanctions
Under the Court’s Inherent P o w er......... 79
B. The Court Erred in Imposing Sanctions
Under Section 1927 ...................................... 81
V III. The District Court Erred in Imposing
Sanctions Under Rule 1 6 ................................. 84
IX. There Is Neither a Factual Nor a Legal
Basis to Sanction the Law F i r m .................... 87
C O N C L U SIO N ................................................................ 89
ADDENDUM
Glossary of Army A bbreviations.................... A-l
Identification of Key Participants.................. B-l
S ta tu te s ............................................ C -l
Federal Rules of Civil Procedure .................. D -l
E .D .N .C . Disciplinary R u les........................... E -l
Advisory Committee Materials on Rule 16 . F -l
IV
TABLE OF AUTHORITIES
Cases Page
Abex Corp. v. Ski’s Enters., 748 F .2d 513 (9th
Cir. 1984)..................................................... ................. 68
Afram Export Corp. v. Metallurgiki Halyps, 772
F,2d 1358 (7th Cir. 1985) ........................................ 55
Albemarle Paper Co. v. Moody, 422 U.S. 405
(1975) . ............................................................................ 3, 33
Alfonso v. United States, 613 F .2d 1309 (5th Cir.
1980)................................. 67
Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,
421 U.S. 240 (1975) ................................................... 66, 69,
70, 73, 79
Ambush v. Montgomery County Gov’t Dep’t of
Fin., 620 F .2d 1048 (4th Cir. 1980) .................... 18, 19
Anthony v. Marion County Gen. Hosp. 617 F.2d
1164 (5th Cir. 1980)............................... 55
Arnold v. Burger King Corp., 719 F .2d 63 (4th
Cir. 1983), cert, denied, 469 U.S. 826 (1984) . . 47
Badillo v. Central Steel <b Wire Corp., 717 F.2d
1160 (7th Cir. 1983)................................................. 83
Barnett v. W.T. Grant Co., 518 F .2d 543 (4th
Cir. 1975).................... 4
Basch v. Westinghouse Elec. Corp., I l l F .2d 165
(4th Cir. 1985), cert, denied, 476 U.S. 1108
(1 9 8 6 )............... 58
Bass v. Southwestern Bell Tel., 811 F .2d 44 (8th
Cir. 1987)............................................ 47
Page
Batson v. Neal Spelce Assocs., Inc., 805 F .2d 546
(5th Cir. 1986) ............................... ............................ 73
Bazemore v. Friday, 751 F .2d 662 (4th Cir.
1984), aff’d in part <b vacated in part, 478 U.S.
385 (1986), on remand, 848 F .2d 476 (4th Cir.
1988)................................................................................ 35
Beall v. Curtis, 603 F. Supp. 1563 (M.D. G a.),
aff’d mem., 778 F .2d 191 (11th Cir. 1985) . . . . 23
Beaudry Motor Co. v. Abko Properties, Inc., 780
F .2d 751 (9th C ir.), cert, denied, 479 U.S. 825
(1 9 8 6 )............................................. . 80
Bell v. New Jersey, 461 U.S. 773 (1983)............... .. 66
Bernard v. Gulf Oil Corp., 841 F .2d 547 (5th
Cir. 1988)............. 34
Blair v. Shenandoah Women’s Center, 757 F.2d
1435 (4th Cir. 1985).................................... .............. 81
Bloom v. Illinois, 391 U.S. 194 (1968) .................... 72
Bloomer v. Liberty Mut. Ins. Co., 445 U.S. 74
(1 9 8 0 ).............................................................................. 71
Boddie v. Connecticut, 401 U.S. 371 (1971) ......... 76
Bowers t>. Kraft Foods Corp., 606 F .2d 816 (8th
Cir. 1979)....................................................................... 48
Brewer v. School Bd. of Norfolk, 456 F .2d 943
(4th C ir.), cert, denied, 406 U.S. 933 (1 9 7 2 ) ... 79
Brown v. General Servs. Admin., 425 U.S. 820
(1 9 7 6 )...................... 67
Burrus v. United Tel. Co., 683 F .2d 339 (10th
C ir.), cert, denied, 459 U.S. 1071 (1982)............. 22
vi
Page
Burull v. First N atl Bank of Minn., 831 F .2d 788
(8th Cir. 1987), cert, denied, 108 S. Ct. 1225
(1 9 8 8 )........... .................................................... ............. 81
Butler v. USDA, 826 F .2d 409 (5th Cir. 1987) . . . 63, 70
Byram Concretanks, Inc. v. Warren Concrete
Prods. Co., 374 F .2d 649 (3d Cir. 1967) . . . . . . 71
Cabell v. Petty, 810 F .2d 463 (4th Cir. 1987) . . . . 76
Calloway v. Marvel Entertainment Group, 854
F .2d 1452 (2d Cir. 1988), cert, granted, 109 S.
Ct. 1116 (1989) .................... ....................................... 88
Carbon Fuel Co. v. United Mine Workers, 517
F .2d 1348 (4th Cir. 1975) .................... ................... 77, 78
Carlucci v. Piper Aircraft Corp., 775 F .2d 1440
(11th Cir. 1985) ............................. .. 62
Carpenter v. Stephen F. Austin State Univ., 706
F .2d 608 (5th Cir. 1 9 8 3 )......................................... 67
Castaneda v. Partida, 430 U.S. 482 ( 1 9 7 7 ) . . . . . . . 45
Celotex Corp. v. Catrett, A ll U .S. 317 (1986) . . . 52
Chambers v. Hendersonville City Bd. of Educ.,
364 F .2d 189 (4th Cir. 1966) ................................. 4
Cheek v. Doe, 828 F .2d 395 (7th C ir.), cert,
denied, 484 U.S. 955 (1 9 8 7 )............. .. .............. 68
Chisholm v. United States Postal Serv., 665 F.2d
482 (4th Cir. 1981)........... ......................................... 34
vii
Page
Christiansburg Garment Co. v. EEOC, 434 U.S.
412 (1978) ..................................................................... passim
Cohen v. Virginia Elec, ir Power Co., 788 F .2d
247 (4th Cir. 1986) ................................................... 58
Colomhrito v. Kelly, 764 F .2d 122 (2d Cir. 1985) 80-81
Connecticut v. Teal, 457 U.S. 440 (1982)............... 5, 25, 34
Copeland v. Martinez, 603 F .2d 981 (D .C . Cir.
1979), cert, denied, 444 U.S. 1044 (1980) ......... 70
Corporation of the Presiding Bishop v. Associated
Contractors, Inc., 877 F .2d 938 (11th Cir.
1989)................................................................................ 50
Crawford Fitting Co. v. J.T . Gibbons, Inc., 482
U.S. 437 (1987)............................................................ 68, 72
Culberston v. Jno. McCall Coal Co., 495 F .2d
1403 (4th C ir.), cert, denied, 419 U.S. 1033
(1 9 7 4 ).......................... ......................................... .. 69
Daly v. Hill, 790 F .2d 1071 (4th Cir. 1986) ......... 67
De Lesstine v. Fort Wayne State Hosp., 682 F .2d
130 (7th C ir.), cert, denied, 459 U.S. 1017
(1982) ........................................ 25
Disabled in Action v. Mayor of Baltimore, 685
F .2d 881 (4th Cir. 1 9 8 2 ).......................................... 56
District Number 8, In ti Ass’n of Machinists v.
Clearing, 807 F .2d 618 (7th Cir. 1986) ................. 52
Donaldson v. Clark, 819 F .2d 1551 (11th Cir.
1987) (en b a n c ) .......................................................... 72, 78
V l l l
Page
Donovan v. Nichols, 646 F .2d 190 (5th Cir. 1981) 70
Dooley v. Reiss, 736 F .2d 1392 (9th Cir.) cert,
denied, 469 U .S. 1038 (1984) ............................. 53
Dow Chem. Pac. Ltd. v. Rascator Maritime S.A.,
782 F .2d 329 (2d Cir. 1986) .................................... 87, 88
Dreiling v. Peugeot Motors, 850 F .2d 1373 (10th
Cir. 1988)................................... ............................ .. 80
EEOC v. Fruehauf Corp., 609 F .2d 434 (10th
Cir. 1979).................. .. ............................... ................. 48
EEOC v. Kenneth Balk 6- Assocs., 813 F .2d 197
(8th Cir. 1987) ........... ................................................ 57
EEOC v. Kimbrough Inv. Co., 703 F .2d 98 (5th
Cir. 1983).............................................. 56, 63
EEOC v. Pet, Inc., 719 F .2d 383 (11th Cir. 1983) 48, 53
EEOC v. Sears, Roebuck & Co., 114 F .R .D . 615
(N.D. 111. 1987)............................... ............................ 56
EEOC v. St. L o u is-S .F . Ry., 743 F .2d 739 (10th
Cir. 1984)................ ................. ................ ................... 54
EEOC v. Tarrant Distribs., Inc., 750 F .2d 1249
(5th Cir. 1984) ............................... ..................... . . . 47, 55
Eash v. Riggins Trucking, Inc., 757 F .2d 557 (3d
Cir. 1985) (en b an c) ........................... ................. .. 72, 74
IX
Page
Eastway Constr. Corp, v. City of New York, 762
F .2d 243 (2d Cir. 1985)............................................ 46
Epstein v. Secretary, United States Dep’t of
Treasury, 739 F .2d 274 (7th Cir. 1984) ............. 23, 24
Estate of Bias ex rel. Chargualaf v. Winkler, 792
F .2d 858 (9th Cir. 1 9 8 6 )............................... .. 83
Evans v. Davie Truckers, Inc., 769 F .2d 1012
(4th Cir. 1985) ............................................................ 48
Evans v. Jeff D ., 475 U.S. 717 (1986)...................... 67
F.D. Rich Co. v. United States, 417 U.S. 116
(1 9 7 4 )........................................ ..................................... 73, 75
Fetner v. City of Roanoke, 813 F .2d 1183 (11th
Cir. 1987).................................................................. 61
F.H. Krear 6- Co. v. Nineteen Named Trustees,
810 F .2d 1250 (2d Cir. 1 9 8 7 )................................. 87
Figueroa-Rodriguez v. Lopez-Rivera, 878 F .2d
1488 (1988), reinstated in part, 878 F .2d 1478
(1st Cir. 1989) (en b a n c ) ........................ ................. 85, 86,
87
Fleischmann Distilling Corp. v. Maier Brewing
Co., 386 U.S. 714 (1967)..................... 71
Ford v. Temple Hosp., 790 F .2d 342 (3d Cir.
1986).............................................. ............... 81, 84
Forrest Creek Assocs., Ltd. v. McLean Sav. b
Loan Assn, 831 F .2d 1238 (4th Cir. 1987) . . . . 49
Foster v. Areata Assocs., Inc., 772 F .2d 1453 (9th
Cir. 1985), cert, denied, 475 U.S. 1048 (1986) . 22
x
Page
Fourco Glass Co. v. Transmirra Prod. Corp., 353
U.S. 222 (1957)............................................ 68
Furnco Constr. Corp. v. Waters, 438 U.S. 567
(1 9 7 8 )............. 22
Gagliardi v. McWilliams, 834 F .2d 81 (3d Cir.
1987).. .......................................................... 75
Gaiardo v. Ethyl Corp., 835 F .2d 479 (3d Cir.
1987).............................................. .............................. .. 46, 50
Gamble v. Pope 6- Talbot, Inc., 307 F .2d 729 (3d
Cir.) (en banc), cert, denied, 371 U.S. 888
(1962) .............................................................................. 74
Gelco Corp. v. Baker Indus., 779 F .2d 26 (8th
Cir. 1985).................................... 84
Gerena-Valentin v. Koch, 739 F .2d 755 (2d Cir.
1984) ............................. ................... .............................. 67
Gibson v. Davis, 587 F .2d 280 (6th Cir. 1978),
cert, denied, 441 U.S. 905 (1979) ......................... 70
Glymph v. Spartanburg Gen. Hosp., 783 F.2d
476 (4th Cir. 1986)......... ................. .. 47, 52,
’ 56’
Great Am. Fed. Sav. & Loan Ass’n v. Novotny,
442 U.S. 366 (1 9 7 9 )............. 68
Greenberg v. Hilton In ti Co., 870 F .2d 926 (2d
Cir. 1989)....................................................... 83
Greenberg v. Sola, 822 F.2d 882 (9th Cir. 1987) . 46, 52
Grier v. Secretary of the Navy, 677 F. Supp. 362
(E.D . Pa. 1 9 8 7 ) . . ........... 22
Griggs v. Duke Power Co., 401 U.S. 424 (1971). . 3
XI
Page
Gunby v. Pennsylvania Elec. Co., 840 F .2d 1108
(3d Cir. 1988), cert, denied, 109 S. Ct. 3213
(1 9 8 9 )................................................................ 17
Hairston v. McLean Trucking Co., 520 F .2d 226
(4th Cir. 1975) .............................. 4
Hall v. Cole, 412 U.S. 1 (1 9 7 3 )................................. 70
Hamer v. County of Lake, 819 F .2d 1362 (7th
Cir. 1987)......................................................... 46
Hamilton v. Daley, 111 F .2d 1207 (7th Cir. 1985) 56
Harris v. Marsh, 100 F .R .D . 315 (E .D .N .C .
1983)......................................................... 5
Harris v. Marsh, 679 F . Supp. 1204 (E .D .N .C .
1987) , modified, 123 F .R .D . 204 (E .D .N .C .
1988) ........................................................... passim
Harris v. Marsh, 123 F .R .D . 204 (E .D .N .C .
1988)......................................................... ..................... 3, 12,
60, 77-78
Hawkins v. Anheuser-Busch, Inc., 697 F .2d 810
(8th Cir. 1983) ............................................................ 22
Hensley v. Eckerhart, 461 U.S. 424 (1983)............... 67
Herbert v. Monsanto Co., 682 F .2d 1111 (5th
Cir. 1982)....................................................................... 48
Herbert v. Saffell, 877 F .2d 267 (4th Cir. 1989) . . 76
Hess v. New Jersey Transit Rail Operations, Inc.,
846 F .2d 114 (2d Cir. 1 9 8 8 )...................................... 78
Hicks ex rel. Feiock v. Feiock, 108 S. Ct. 1423
(1 9 8 8 )............................................................................. 77
Xll
Page
Hicks v. Heckler, 756 F .2d 1022 (4th Cir. 1985). . 14-15
Holmes v. Bevilacqua, 794 F .2d 142 (4th Cir.
1986) (en b a n c ) ........................ ................. ................. 18, 19,
54
Hoover Universal, Inc. v. Brockway Imco, Inc.,
809 F .2d 1039 (4th Cir. 1 9 8 7 ) ............................... 46
Hudson v. Moore Business Forms, Inc., 836 F.2d
1156 (9th Cir. 1987).................................... ............... 53
Hughes v. Rowe, 449 U.S. 5 (1980)............. .. 56
Independent Fed’n of Flight Attendants v. Zipes,
109 S. Ct. 2732 (1989)............................................... 67
In re Abrams, 521 F .2d 1094 (3d C ir.), cert,
denied, 423 U .S. 1038 (1975) .................................. 61
In re Baker, 744 F .2d 1438 (10th Cir. 1984), cert,
denied, 471 U.S. 1014 (1 9 8 5 )................................. 88
In re Chaplain, 621 F .2d 1272 (4th C ir.), cert.
denied, 499 U.S. 834 (1980) ............................. .. 62
In re Kave, 760 F .2d 343 (1st Cir. 1985) . . . . . . . . 78-79
In re McDonald, 819 F .2d 1020 (11th Cir. 1987) . 62
In re Reid,'854 F .2d 156 (7th Cir. 1 9 8 8 )........... 71
In re Ruben, 825 F .2d 977 (6th Cir. 1987), cert,
denied, 108 S. Ct. 1108 (1988).............. 81
In re Rumaker, 646 F .2d 870 (5th Cir. 1 9 8 0 )___ 78
X l l l
Page
In re Thalheim, 853 F .2d 383 (5th Cir. 1 9 8 8 ) . . . . 61, 62
In re Yagman 796 F .2d 1165 (9th Cir. 1986),
cert, denied, 484 U.S. 963 (1987) ........................ 75, 78,
88 ’
Introcaso v. Cunningham Corp., 857 F .2d 965
(4th Cir. 1988) ............................................................ 47, 58
Johnson v. Ryder Truck Lines, 555 F .2d 1181
(4th Cir. 1977), cert, denied, 440 U.S. 979
(1979) ...................................................................................... 3
Johnson v. Seaboard Air Line R.R., 405 F .2d 645
(4th Cir. 1968), cert, denied, 394 U.S. 918
(1969) .................................................................................. 4
Jones v. Continental Corp., 789 F .2d 1225 (6th
Cir. 1986)................................................................... 46,
47-48
Jones v. Texas Tech. Univ., 656 F .2d 1137 (5th
Cir. 1981)....................................................................... 50
Jordon v. Gilligan, 500 F .2d 701 (6th Cir. 1974),
cert, denied, 421 U.S. 991 (1975) ........................ 69
Kirby v. Allegheny Beverage Corp., 811 F .2d 253
(4th Cir. 1987) ............................................................ 50
Lankford v. Law Enforcement Assistance Admin.,
620 F .2d 35 (4th Cir. 1980) .................................... 82
Larouche v. National Broadcasting Co., 780 F.2d
1134 (4th C ir.), cert, denied, 479 U.S. 818
(1 9 8 6 )............................................................................. 79
LeBeau v. Libbey-Owens-Ford Co., 799 F .2d
1152 (7th Cir. 1986)................................... ............... 47, 50
Lee v. Southern Home Sites Corp., 444 F .2d 143
(5th Cir. 1971) ..................................... 66
xiv
Page
Little v. Southern Elec. Steel Co., 595 F .2d 998
(5th Cir. 1979) ................................................. .. 52
Logan v. Zimmerman Brush Co., 455 U.S. 422
(1982) ........................... ................ ................................ 61
Long v. Ford Motor Co., 496 F .2d 500 (6th Cir
1974) ............................................ ................................ 25
Lotz Realty Co. v. United States Dep’t of Horn.
6- Urban Dev., 717 F .2d 929 (4th Cir. 1983) . . 19
Lynn v. Regents Univ. of C a l, 656 F .2d 1337
(9th Cir. 1981), cert, denied, 459 U.S. 823
(1982) ........................................ .............................. .. 22
Maine v. Thiboutot, 448 U.S. 1 (1980) . . . . . . . . . . 67
Manax v. McNamara, 842 F.2d 808 (5th Cir.
1988) ........................................ ....................................... 81
Marshall v. Jerrico, Inc., 446 U.S. 238 (1980)___ 75
Mary Ann Pensiero, Inc. v. Lingle, 847 F .2d 90
(3d Cir. 1988) ...................................... ....................... 55, 57
McCargo v. Hedrick, 545 F .2d 393 (4th Cir.
1976) ............................... 86
McCrary v. Runyon, 515 F .2d 1082 (4th Cir.
1975) , aff’d, 427 U.S. 160 (1976).............. .. 66
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) ............................. passim
Mihalik v. Pro Arts, Inc., 851 F .2d 790 (6th Cir.
1988) ............................. 48
Miranda v. Southern Pac. Transp. Co., 710 F.2d
516 (9th Cir. 1983).................................... 60, 62
Mitchell v. Baldrige, 759 F ,2d 80 (D .C . Cir.
1985).. .................................................. 22
XV
Page
Mitchell v. Office of Los Angeles County
Superintendent of Schools, 805 F .2d 844 (9th
Cir. 1986), cert, denied, 484 U.S. 858 (1987) . . 48
Montgomery Ward 6- Co. v. Pacific Indem. Co.,
557 F .2d 51 (3d Cir. 1977 )...................................... 69
Montgomery v. Yellow Freight Sys., 671 F .2d 412
(10th Cir. 1982) ................................. ........................ 48
Moore v. National Assn of Sec. Dealers, Inc., 762
F.2d 1093 (D .C . Cir. 1985) ............. ..................... 67
Morris v. Peterson, 871 F .2d 948 (10th Cir. 1989) 80
Mount Sinai Hosp. v. Weinberger, 517 F .2d 329
(5th Cir. 1975), cert, denied, 425 U .S. 935
(1 9 7 6 )............................................................................. 65-66
NAACP v. City of Mansfield, 866 F .2d 162 (6th
Cir. 1989)....................... ........................... ................... 34
National Ass’n of Gov’t Employees v. National
Fed’n of Fed. Employees, 844 F .2d 216 (5th
Cir. 1988)..................................................... 56
Neitzke v. Williams, 109 S. Ct. 1827 (1989) ......... 46, 49
Nelson v. Piedmont Aviation, Inc., 750 F .2d 1234
(4th Cir. 1984), cert, denied, 471 U.S. 1116
(1985) .............................................................................. 79
Nemeroff v. Abelson, 620 F .2d 339 (2d Cir. 1980) 81
Nepera Chem., Inc. v. Sea-Land Serv., Inc., 794
F.2d 688 (D .C . Cir. 1986) ..................................... 80
Nesmith v. Martin Marietta Aerospace, 833 F.2d
1489 (11th Cir. 1987).......................................... 47
xvi
Page
New Alaska Dev. Corp. v. Guetschow, 869 F.2d
1298 (9th Cir. 1989)................................................... 81
New York Gaslight Club, Inc. v. Carey, 447 U S
54 (1980) ............. ..................... ................... ............... 67, 70
Nix v. Whiteside, 475 U.S. 157 (1986) .................... 52
Northcross v. Board of Educ., 412 U.S. 427
(1 9 7 3 )................................................ ................. .. 67
Nye v. United States, 313 U.S. 33 (1941 )............... 77
Obin v. District No. 9 In ti Ass’n of Machinists,
651 F .2d 574 (8th Cir. 1 9 8 1 ) ...................... .. 48
Olga’s Kitchen of Hayward, Inc. v. Papo, 108
F .R .D . 695 (E .D . Mich. 1985), aff’d in part
and rev’d in part, No. 85-1581 (6th Cir. Feb.
16, 1987) ............. .............................................. 73
Oliveri v. Thompson, 803 F .2d 1265 (2d Cir.
1986), cert, denied, 480 U.S. 918 (1987) . . . . . . 46, 50,
52, 81
O’Rourke v. City of Norman, 875 F .2d 1465
(10th Cir. 1989) ........... ....................................... .. 83
Page v. Bolger, 645 F .2d 227 (4th C ir.), cert.
denied, 454 U.S. 892 (1 9 8 1 )...................... .. 18
Pantry Pride Queen Foods, Inc. v. Lifschultz Fast
Freight, Inc., 809 F .2d 451 (7th Cir. 1987) . . . . 50
Parker v. Califano, 561 F .2d 320 (D .C . Cir.
1977) ......................................................................... .. 64
Patterson v. Coughlin, 761 F .2d 886 (2d Cir.
1985), cert, denied, 474 U.S. 1100 (1986) ......... 61
xvii
Page
Patterson v. McLean Credit Union, 109 S. Ct.
2363 (1989) ................................................................... passim
Pavelic ir Leflore v. Marvel Entertainment
Group, No. 88-791 (U.S. argued Oct. 2, 1989) . 88
Penfield Co. v. SEC, 330 U.S. 585 (1 9 4 7 )............. 77
Peters v. Lieuallen, 693 F .2d 966 (9th Cir. 1982). 25
Pickens v. Children’s Mercy Hosp., 124 F .R .D .
209 (W .D. Mo. 1989)........................................ 50, 51
Pitre v. Western Elec. Co., 843 F .2d 1262 (10th
Cir. 1988)....................................................................... 25
Plemer v. Parsons-Gilbane, 713 F .2d 1127 (5th
Cir. 1983).................... .. ............................................... 24, 48
Pocahontas Supreme Coal Co. v. Bethlehem Steel
Corp., 828 F .2d 211 (4th Cir. 1987) . .................. 57
Poulis v. State Farm Fire & Casualty Co., 747
F .2d 863 (3d Cir. 1984)............. .............................. 88
Ragan v. Merchants Transfer & Warehouse Co.,
337 U.S. 530 (1949) ...................... 69
Ray A. Scharer 6- Co. v. Plabell Rubber Prods.,
Inc., 858 F .2d 317 (6th Cir. 1988) ...................... 73, 75
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367
(1 9 6 9 )............................ 65
Rhode Island Comm, on Energy v. General Servs.
Admin., 561 F .2d 397 (1st Cir. 1 9 7 7 ) .................. 70
Richmond Black Police Officers Ass’n v. City of
Richmond, 548 F .2d 123 (4th Cir. 1 9 7 7 )........... 77
xvui
Page
Roadway Express, Inc. v. Piper, 447 U.S. 752
(1980) ........... .............................. ................. passim
Robinson v. Lehman, 771 F .2d 772 (3d Cir.
1985).................... ................. ......................................... 22
Robinson v. National Cash Register Co., 808 F.2d
1119 (5th Cir. 1987)............................. .. 88
Rossman v. State Farm Mut. Auto. Ins. Co., 832
F.2d 282 (4th Cir. 1987) ............................... .. 51
Runyon v. McCrary, 427 U.S. 160 (1976) . ............ 3, 52
Russell v. American Tobacco Co., 528 F .2d 357
(4th Cir. 1975), cert, denied, 425 U.S. 935
(1 9 7 6 )........................................................ 3-4
Schwarz v. Folloder, 767 F .2d 125 (5th Cir.
1985) .................................................................. 87
Seatrain Shipbuilding Corp. v. Shell Oil Co., 444
U.S. 572 (1980)....................................................... 65
Seymore v. Readers Digest Ass n, 493 F. Supp.
257 (S.D.N.Y. 1 9 8 0 ) . . . . . . . . . . . . . . . . . . . . . . . . 25
Shillitani v. United States, 384 U.S. 364 (1966) . . . 78
Sierra Club v. United States Army Corps of
Eng’rs, 776 F .2d 383 (2d Cir. 1985), cert,
denied, 475 U .S. 1084 (1986) .................... .. 80
Smith v. WGBH-TV, 26 Em pl. Prac. Dec. (CCH)
1 31,891 (D. Mass. May 14, 1981)...................... 25
Snow Machines, Inc. v. Hedco, Inc., 838 F.2d
718 (3d Cir. 1988) ........................................ 75
X IX
Page
Sullivan v. Pennsylvania Dep’t of Labor ir
Indus., 663 F .2d 443 (3d Cir. 1981), cert,
denied, 455 U .S. 1020 (1982) .................................. 56
Sullivan v. School Bd. of Pinellas County, 773
F .2d 1182 (5th Cir. 1 9 8 5 )....................................... 53, 56
Tarter v. Raybuck, 742 F .2d 977 (6th Cir. 1984),
cert, denied, 470 U.S. 1051 (1985) ...................... 53
Taylor v. Safeway Stores, Inc., 365 F. Supp. 468
(D. Colo. 1973), aff’d in part ir rev’d in part,
524 F .2d 263 (10th Cir. 1975) ......................... 25
Terrell v. United States, 6 F .2d 498 (4th Cir.
1925)................................................................................ 75
Texas Dep’t of Community Affairs v. Burdine,
450 U .S. 248 (1 9 8 1 )................................................... 33, 47
Thomas v. Capital Sec. Servs., Inc., 836 F .2d 866
(5th Cir. 1988) (en banc).................... ..................... 50, 88
Thornberry v. Delta Air Lines, 676 F.2d 1240
(9th Cir. 1982), vacated on other grounds, 461
U .S. 952 (1983).......................... 67
Tiedel v. Northwestern Mich. College, 865 F.2d
88 (6th Cir. 1988)................................... 76
Tom Growney Equip., Inc. v. Shelley Irrigation
Dev., Inc., 834 F .2d 833 (9th Cir. 1987) . . . . . . 61
Torres v. County of Oakland, 758 F .2d 147 (6th
Cir. 1985)....................................................................... 17, 53
Townsend v. Holman Consulting Corp., 881 F.2d
788 (9th Cir. 1989)..................................................... 57
xx
Page
United Food ir Commercial Workers, Local 400
v. Marval Poultry Co., 876 F .2d 346 (4th Cir.
1989).. ............................................................................ 14, 15
United States v. Austin, 749 F .2d 1407 (9th Cir.
1984)..................................................... .......................... 72
United States v. Blodgett, 709 F .2d 608 (9th Cir.
1983) ........................................................................... .. . 72
United States v. McPherson, 840 F .2d 244 (4th
Cir. 1988)....................................... ............................ .. 68
United States v. Ross, 535 F .2d 346 (6th Cir.
1976) ........................... .............................. ............ .. 72, 74
United States v. Standard Oil Co., 603 F.2d 100
(9th Cir. 1979) ................................................ 80
United States v. Stoneberger, 805 F .2d 1391 (9th
Cir. 1986)............. .................................. .. 61
United States v. Waste Indus., 734 F.2d 159 (4th
Cir. 1984)................................................................ 65
Vance v. Whirlpool Corp., 716 F .2d 1010 (4th
Cir. 1983), cert, denied, 465 U.S. 1102, & 467
U.S. 1226 (1984) ...................... 65
Vandenplas v. City of Muskego, 797 F .2d 425
(7th Cir. 1986) ........................................................... 48
Walker v. St. Anthony’s Med. Center, 881 F.2d
554 (8th Cir. 1989).. .................................. 25
Warren v. Halstead Indus., 802 F .2d 746 (4th
Cir. 1986)................................... 18
Warren v. Reserve Fund, Inc., 728 F .2d 741 (5th
Cir. 1984)............. .......................... ............................. 84
X XI
Page
Wattleton v. Ladish Co., 520 F. Supp. 1329
(E .D . Wis. 1981), aff’d sub nom. Wattleton v.
International Bhd. of Boilermakers,, 686 F .2d
586 (7th Cir. 1982), cert, denied, 459 U.S.
1208 (1983) ................................................................... 56
Weinberger v. Hynson, Westcott <b Dunning,
Inc., 412 U.S, 609 (1 9 7 3 ) ........... ............................ 82
Westmoreland v. CBS, Inc., 770 F .2d 1168 (D .C ,
Cir. 1985)............................... 88
Whalen v. Ford Motor Credit Co., 684 F .2d 272
(4th Cir.) (en banc), cert, denied, 459 U.S. 910
(1 9 8 2 )........... 85
Wheeler v. Durham City Bd. of Educ., 585 F .2d
618 (4th Cir. 1978)............. .............................. .. 67, 68
White v. Raymark Indus., 783 F .2d 1175 (4th
Cir. 1986)....................................................................... 72, 74,
75
White v. South Park Indep. School Dist., 693
F .2d 1163 (5th Cir. 1 9 8 2 )........... 48
Windsor Power House Coal Co. v. District 6
United Mine Workers, 530 F .2d 312 (4th C ir.),
cert, dismissed, 429 U.S. 876 (1 9 7 6 ).................... 77, 79
Williams v. Giant Eagle Markets, 51 Empl. Prac.
Dec. (CCH) 1 39,290 (3d Cir. Aug. 28, 1989) . 48
Woodrum v. Woodward County, 866 F .2d 1121
(9th Cir. 1989) ............................................................ 46
Wrenn v. Gould, 808 F .2d 493 (6th Cir. 1987),
cert, denied, 108 S. Ct. 1032 (1988) . .................. 47, 48
Zaldivar v. City of Los Angeles, 780 F .2d 823
(9th Cir. 1986) ....................................................... 47, 69,
88
xxii
Page
Statutes and Rules
8 U .S.C § 1324b ....... .................................................... 65
17 U .S.C . § 505 ....... ........................................... 65
28 U .S.C . § 1920 ........... ....................................... 68, 71-72
28 U .S.C . § 1927 .................... ............................ .. passim
28 U .S.C . § 2072(b) ................ .............................. 69
28 U .S.C . § 2412 ....................................................... .... 63, 70
42 U .S.C . § 2000h ....................................................... .. 76
42 U .S.C . § 1988 ....................................................... .. . 58, 64,
66-67
42 U .S.C . § 1997a ....................................................... .. 65
42 U .S.C . § 2000a-3 ..................................................... .. 65
42 U .S.C . § 2000e-5(k) ................ ................................ 63, 66-71
Fed. R. Civ. P. 1 1 . passim
Fed. R. Civ. P. 16 ....... ............. passim
Fed. R. Civ. P. 37(a)(4).................................... 58
Fed. R. Civ. P. 3 7 (b ) . 69
Fed. R. Civ. P. 4 1 (b )............................................... .. . 33-34
Fed. R. Grim. P. 42(b) ..................................... .. . 76, 78
Fed. R. Evid. 201(b) ............................................ .. 79
Fed. R. Evid. 201(e).................... .............................. .. . 79
Fed. R. Evid. 605 ........... .............................................. 79
Fed. R. Evid. 8 0 2 ........... .......... .......... . . . . . . . . . . . . 79
4th Cir. R. 2 8 (c ) ......... .............................. .. 61
E .D .N .C . R. 2.10 . . . . ................ .................................. 61
XX111
Page
E .D .N .C . Disc. R. 101 .00 ............................................ 61
E .D .N .C . Disc. R. 102.00 ............................................ 61
E .D .N .C . Disc. R. 104.00 ............................... 61
E .D .N .C . Disc. R. 104 .01 ............................................ 61
E .D .N .C . Disc. R. 104.02 ..................................... 61
E .D .N .C . Disc. R. 105 .01 ............................................ 61-62
E .D .N .C . Disc. R. 105.04 ................... 62
E .D .N .C . Disc. R. 112 .00 ............................................ 62
Other Authorities
S. Rep. No. 1011, 94th Cong., 2d Sess., reprinted
in 1976 U.S. Code Cong. & Admin. News 5908 66
H.R. Rep. No. 442, 99th Cong., 1st Sess. (1986) . 69
H.R. Rep. No. 1234, 96th Cong., 2d Sess.,
reprinted in 1980 U.S. Code Cong. & Admin.
News 2781 .................................................................... 72, 82-83
H .R. Rep. No. 1558, 94th Cong., 2d Sess. (1976). 66
134 Cong. Rec. S16,296 (daily ed. Oct. 14, 1988) 69
126 Cong. Rec. 23,625-26 (1980 )............................... 83
122 Cong. Rec. 35,116 (1976)................... 64-65
Fed. R. Civ. P. 11 advisory committee n o t e ......... 49
Manual for Complex Litigation §§ 21.634, 21.66
(2d ed. 1 9 8 5 )................................................................ 86
XXIV
Page
2A J. Moore, Moore’s Federal Practice if 11.02[3]
(1 9 8 7 ).................... .............................. .......................... 68
2A N. Singer, Statutes and Statutory Construction
§ 46.06 (4th ed. 1 9 8 4 ).............................................. 82
Webster’s Ninth New Collegiate Dictionary (1986) 82
6 J. Wigmore, Evidence in Trials at Common
Law § 1805 (Chadbourn rev. ed. 1 9 7 6 )............. 79
Burbank, Proposal to Amend Rule 68 - Time to
Abandon Ship, 19 U. Mich. J .L . Ref. 425
(1 9 8 6 )........... 69
R. Rodes, K. Ripple & C. Mooney, Sanctions
Imposable for Violations of the Federal Rules
of Civil Procedure (Federal Judicial Center
1981) ................................... 86
Schwarzer, Rule 11 Revisited, 101 Harv. L . Rev.
1013 (1988) . ................................ 75
X X V
Hotted l&aies (Court of Appeals
for the
fourth (Circuit
No. 88-1364 (Lead)
SANDRA L. BLU E,
Plaintiff-Appellant,
— against —
UNITED STATES DEPARTM ENT OF TH E ARMY, et ah,
Defendants-Appellees.
IN RE: JU LIU S L . CHAMBERS,
Appellant in No. 88-1379,
FERGUSON, STEIN , W ATT, W ALLAS & ADKINS, P.A.,
Appellant in No. 88-1377.
Appeal from the United States District Court for the Eastern District
of North Carolina, at Fayetteville, James C. Fox, Judge.
BRIEF OF APPELLANTS JULIUS L. CHAMBERS AND
FERGUSON, STEIN, WATT, WALLAS & ADKINS, P.A.
Issues Presented
1. Whether the district court erred in finding that Beulah Mae
Harris’ discrimination claims were frivolous.
2. Whether the district court erred in finding that Sandra
Blue’s discrimination claims were frivolous.
3. Whether the district court erred in sanctioning plaintiffs’
attorneys under Fed. R. Civ. P. 11.
4. Whether the district court erred in awarding attorneys’ fees
to the Army for frivolous litigation under a general statute, court
rules and the common law when Title VII expressly prohibits
such an award.
5. Whether the district court erred in disciplining the attorneys
without following its local rules and without giving them prior
notice and an opportunity to be heard.
6. Whether the district court erred in fining the attorneys and
the parties nearly $38,000 for the time spent by the court and
its staff, and in doing so without following the procedures re
quired for criminal contempt.
7. Whether the district court erred in finding that the at
torneys acted in bad faith and in construing 28 U.S.C. § 1927
to apply to negligent acts.
8. Whether the district court erred in imposing sanctions
under Fed. R. Civ. P. 16 for conduct that the rule does not
address.
9. Whether the district court lacked legal authority to sanc
tion the attorneys’ law firm and failed to make the required fac
tual finding of improper conduct.
2
Statement of the Case1
The appeal arises from numerous and complicated claims of
race discrimination that were filed against the United States
Army concerning its employment practices at Fort Bragg, North
Carolina. After almost seven years of litigation, during which
most of the claims were settled, the United States District Court
for the Eastern District of North Carolina dismissed the remain
ing claims and sanctioned two of the plaintiffs and their counsel
almost $90,000, in addition to disciplining counsel for ethical
violations. Harris v. Marsh, 679 F. Supp. 1204 (E.D.N.C. 1987).
After post-judgment motions, the court modified the sanctions,
eliminating the penalities for two of the attorneys, but increas
ing the sanctions payable by the appellants here Harris v. Marsh,
123 F.R.D. 204 (E.D.N.C. 1988); App. 1Q39-43.2
Julius Chambers, the lawyer who had the ultimate respon
sibility for the conduct of the litigation below (App. 1008, 1173),
has had a long and distinguished career as a civil rights lawyer.
He has successfully participated in numerous civil rights cases
before the United States Supreme Court, particularly employ
ment discrimination cases. E.g., Griggs v. Duke Power Co., 401
U.S. 424 (1971); Albemarle Paper Co. v. Moody, 422 U.S. 405
(1975). Just last Term, he argued for the petitioner in Patterson
v. McLean Credit Union, 109 S. Ct. 2363, 2371 (1989), in which
the Court reaffirmed “society’s deep commitment to the eradica
tion of discrimination based on a person’s race or the color of
his or her skin,” refusing to overrule Runyon v. McCrary, 427
U.S. 160 (1976).3 In many of these cases, Mr. Chambers’ clients
' For the Court’s convenience, we have submitted in the addendum to this
brief a glossary of abbreviations and a list of relevant Army individuals.
1 “App. —” refers to pages in the Appendix where supporting record evidence
has been reproduced. Cited materials that are not included in the Appendix
are referred to by docket entry (“Dkt.”) numbers. Transcript references to the
Appendix identify the name of the witness and the date of the testimony, and
other transcript references are cited as “Tr.”
3 His record before this Court is equally extensive. E.g., Johnson v. Ryder Truck
Lines, 555 F.2d 1181 (4th Cir. 1977), cert, denied, 440 U.S. 979 (1979); Russell
(Footnote continued)
3
did not finally prevail until the Supreme Court vindicated their
positions. Here, too, it was not until the Court’s decision in Pat
terson that issues of law critical to this litigation were dispositive-
ly resolved, in direct conflict with the lower court’s rulings.
The Complaints
In the spring of 1980, Mr. Chambers was contacted by two
individuals about an administrative class action complaint that
had been filed, alleging racial discrimination at Fort Bragg,
an Army base in Fayetteville, North Carolina. Chambers con
ferred with statisticians and was assured that their analyses
demonstrated statistically significant racial effects in a number
of the Army’s employment practices. App. 1174. He then agreed
to represent two potential class members. Following ad
ministrative proceedings, the EEO C concluded that a class
should be certified with respect to claims of discriminatory pro
motions and reprisal. App. 82-83.
A complaint was filed in federal court in September 1981. App.
48. Sandra Blue was a class representative. Chambers and his
associates met repeatedly with her and other individual members
of the class and collected documents from them / App. 1175-76.
Between the filing of the complaint and the subsequent hear
ing on class certification, the plaintiffs’ and defendant’s counsel
conducted substantial discovery. App. 2.
The discovery showed that prior to 1982, applications for pro
motions were initially screened by a staffing specialist from Fort
v. American Tobacco Co., 528 F.2d 357 (4th Cir. 1975), cert, denied, 425 U.S.
935 (1976); Hairston v. McLean Trucking Co., 520 F.2d 226 (4th Cir. 1975);
Barnett v. W.T. Grant Co., 518 F.2d 543 (4th Cir. 1975); Johnson v. Seaboard
Air Line R.R., 405 F.2d 645 (4th Cir. 1968), cert, denied, 394 U.S. 918 (1969);
Chambers v. Hendersonville City Bd. of Educ., 364 F.2d 189 (4th Cir. 1966).
* At the outset of the case, Chambers was assisted by Gilda Glazer, an associate
at his firm, Chambers, Ferguson, et al., and later by Penda Hair, an attorney
from the NAACP Legal Defense and Educational Fund, Inc. In 1983, he was
joined by Geraldine Sumter, an associate who had recently been hired by his
firm.
4
Bragg’s Civilian Personnel Office (“CPO”) to determine whether
the candidates met the position’s minimum eligibility require
ments. A rating and ranking panel composed of three employees
would then evaluate the qualified candidates according to highly
qualifying criteria (“H Q C”). The panel, again assisted by the
staffing specialist, then scored the applicants under four major
categories: experience, awards, supervisory appraisals and “self
development.” (Until the 1982 revisions of the promotion prog
ram, applicants received points in the self development category
for training and education that were not necessarily job-related.)
The Army next employed its 85 % and Ten Referral Rules, which
limited the referral of candidates to those individuals who scored
within 85 % of the top score, with a maximum of ten candidates,
to determine which candidates should be deemed “best
qualified” and referred for an interview. App. 79.
After the filing of the class complaint, which addressed the
promotion system and other employment practices, the Army
changed certain features of its promotion system, including
eliminating the 85 % and Ten Referral Rules. The Army also
substantially reduced the role of subjective judgments in the pro
motion process, about which plaintiffs had also complained. It
shifted to a more objective skill-specific evaluation, and
eliminated consideration of certain factors unrelated to job per
formance. App. 79.
On July 1, 1983, after extensive briefing and six weeks following
a hearing, the court denied plaintiffs’ motion for class certifica
tion. App. 99.5 The order provided that plaintiffs could seek class
certification again should the trial evidence demonstrate it was
proper. Trial had been set to begin on August 1, 1983. Dkt. 61.6
5 Sandra Blue had resigned from the Army in June 1983.
6 After deliberating for two months, the court issued a memorandum opinion.
Harris v. Marsh, 100 F.R.D. 315 (E.D.N.C. 1983). Because of later settlement
agreements (see infra), this order denying class certification cannot be appealed.
The court based its decision in part on a showing that overall, blacks received
approximately 21 to 24 % of promotions yet represented only 22 to 23 % of
the workforce Id. at 323. This “ bottom line” analysis was legally erroneous.
See Connecticut v. Teal, 457 U.S. 440, 444, 454-56 (1982).
5
Potential class members were thus required to intervene to
secure relief. Upon discussing the administrative complaints with
them, and reviewing their claims (including previous considera
tion of some of the claims in the class action context), counsel
concluded that forty-four clients, including Beulah Mae Har
ris, should move to intervene. The discussions with the clients,
documents produced (including defendant’s affirmative action
reports), and an examination of the law at that time led counsel
to conclude that each claimant could establish at least a prima
facie case of liability. App. 1176-77.7 A proposed complaint-in
intervention, which largely incorporated by reference the class
complaint and included Beulah Mae Harris as a plaintiff, and
a motion to intervene were filed on July 5. Dkt. 84.
The court overruled the Army’s objection to intervention, and
on August 25 ordered the filing of a complaint-in-intervention.
679 F. Supp. at 1229.8 Trial was set to commence in January
1984. App. 294. Following the filing of the complaint, counsel
continued to investigate claims, conduct discovery, and to file
motions to compel discovery. App. 11-12.
The Pretrial Orders
On December 8, 1983, a final pretrial order was filed as to
claims of the six named plaintiffs, including Sandra Blue. App.
114. On December 13, the court entered an order dividing the
trial into three phases: Phase I to consist of the presentation
regarding each claim of the named plaintiffs and plaintiff-
intervenors; Phase II to “consist of defendant’s evidence on the
general methodology of promotion followed by plaintiffs’
evidence concerning the procedures and criteria followed by
defendant in selecting employees for promotion.” The court order
7 Counsel also reviewed, among other things: regulations regarding defendant’s
merit promotion procedures and policies, official personnel files, CIVPER-
SINS data (employment histories, education and length of service by
employees), disciplinary cards, awards, and training files. App. 1115.
8 The intervention created potential conflicts among the plaintiffs, which were
addressed by having some intervenors (including Blue and Harris) drop cer
tain claims. App. 1192. The court found at that time that the conflicts had
been “satisfactorily resolved.” App. 1201.
6
provided that “ [a]ny evidence in the nature of a class action is
precluded until after the methodology phase of the trial. At that
time, the court will consider any motions regarding reconsidera
tion of the class denial and whether additional evidence may
be presented by either party [Phase III].” App. 295. On
December 16, an amended complaint-in-intervention was filed,
which particularized the claims of the intervenors, App. 282.
On January 5, 1984, a supplemental pre-trial order was filed
as to claims of the intervenors.9 App. 297.
In the meantime, the Army filed a flurry of motions affect
ing nearly all the plaintiffs and over one hundred claims. None
addressed the merits of the Blue or Harris claims, much less sug
gested that any claim was frivolous. 679 F. Supp. at 1229-30.
Trials
The first intervenor’s trial started on January 23, 1984.10 It
was prolonged by disputes over numerous procedural, eviden
tiary, and trial practice issues. 679 F. Supp. at 1231. On March
14, after the conclusion of the first trial, the court observed that
“ [c]learly, counsel are extraordinarily competent and have
diligently prepared for this case,” but expressed dissatisfaction
with the slow progress of the case App. 676.“ The order, although
it established comprehensive rules for future trials, made no
reference to altering the phases of the litigation.
9 At the time the pretrial orders were filed, there was no requirement that
claims be designated as for “background” versus “relief.” Cf. Dkt. 151.
10 On the day of trial, plaintiffs filed proposed findings of fact and conclu
sions of law, quoting the court’s December 13 order. The submission governed
the claims of the plaintiffs whose cases were to be tried first. Recognizing the
Phase I-Phase II distinction, the submission stated that “ limited references
to various personnel practices are included . . . to explain the individual claims
of plaintiffs. . . . Proposed findings and conclusions will be submitted later
addressing the claims of the other plaintiffs for Phase I as well as the promo
tion and personnel practices for Phase II.” App. 565.
u In February 1984, the Army fired Harris. In addition, the court moved the
trial to Wilmington from Fayetteville App. 15.
7
Blue’s pretrial brief and exhibit list was filed April 3. Dkt.
166-67, On April 17, the Army filed a motion seeking sanctions
for the abandonment of claims, allegedly demonstrated by
failure to include certain claims in Blue’s pretrial brief. App.
1045-52. No motion was made as to claims included in Blue’s
brief, or as to many claims that had not been specifically men
tioned in the brief.
Trial of Blue’s case commenced on April 19. Her case con
sisted of 4 witnesses and 18 exhibits. On April 24, at the close
of Blue’s case-in-chief, the Army moved under Rule 41(b) for
judgment on the 85 % Rule claims. See App. 2219-27. The Army
made no motion as to any other claim or allegation. Later that
day, it became obvious that there was confusion or disagreement
among counsel and the court about the scope of the phases in
the proceeding. App. 2228-30. Chambers stated that while plain
tiff intended to introduce in Phase I some statistical evidence
concerning the 85 % Rule, further statistical evidence was ex
pected to be presented in Phase II. App. 2222-23, 2230. An order
was issued on May 14 granting the Army’s Rule 41(b) motion,
but no memorandum opinion was filed. The order provided that
“plaintiffs are at liberty to move the court to reconsider the rul
ing at any time in the trial of this litigation, upon a further show
ing of evidence on the 85 % Rule issue” App. 695-96.12
On May 7, 1984, Harris moved to voluntarily dismiss her
claims. Dkt. 193. The Army cross-moved for sanctions against
Harris based on the abandonment of her claims. See App. 1079,
1095. The court granted Harris’ motion with prejudice, reserving
the right to impose sanctions later based on the Army’s cross
motion. App. 698-701. On June 1, the court ordered that decisions
on sanctions motions would be deferred “in order for the court to
12 The May 14 order also required, for the first time in the litigation, that all
claims presented in the future be preceded by an identification of the legal
theory relied upon (e.g., disparate impact or disparate treatment), and that
if “plaintiffs contend that a particular issue or claim is proceeding under a
disparate impact theory, plaintiffs shall specify the exact employment criterion
of the defendant and whether statistical evidence will be presented to sup
port the impact contention.” App. 697.
8
accurately assess the claims and conduct of all parties.” It never
theless required prompt responses to the motions. Dkt. 213.
On July 5, the court found “ it necessary to issue [an] order
detailing the phases of this litigation.” The order stated that in
Phase I plaintiffs must “present all relevant anecdotal and
statistical evidence on each p lain tiff s case when it is called for
trial,” and that Phase II would be optional in the court’s discre
tion. App. 703, 705. On July 16, plaintiffs filed a response to
this order. They stated that their understanding of the court’s
previous orders conflicted with the new scheme proposed by the
court, and contended that Phase II of the case should be man
datory. App. 708. On August 2, plaintiffs filed a proposal for
further guidelines as to the proof allowed in Phase I, which the
defendant opposed. Included was a request to reopen the Blue
case and two other cases previously tried. App. 712.13 Counsel
stated that they wished to recall Sandra Blue as well as the plain
tiffs whose cases were previously concluded to introduce evidence
of background claims, which were previously expected to be
shown in Phase II. App. 715-25.
The Blue trial resumed on August 27, with the Army present
ing its defense, which ultimately included 23 witnesses and 22
exhibits. The next day, the court filed an order containing “addi
tional guidelines” regarding the order of proof. App. 1828. The
order stated that Phase I should include any statistical evidence
directly relevant to any criteria, procedure or practice under
attack in any plaintiffs claim, e.g. the 85 % Rule. It refused
13 The filing stated:
Based on the earlier Orders of the Court, plaintiffs had prepared
their individual cases to address only claims for which plantiffs
were seeking individual relief and such relevant background in
formation as affected those specific claims. Plaintiffs anticipated
that Phase II was automatic and would address other anecdotal
incidents which established a clear pattern of discrimination by
defendant in the application of its employee selection criteria and
procedures or other personnel decisions, the racially discriminatory
impact of various selection criteria and procedures and the sub
jectivity governing defendant’s personnel decisions.
App. 713 (footnote omitted).
9
to admit anecdotal evidence of pattern and practice, subjec
tivity, or disparate impact not directly relevant to plaintiffs’
claims until Phase II. The court refused the request to reopen
two prior cases and did not respond in the order to plaintiffs
motion to reopen the Blue case. App. 1828-30.
The Blue trial was completed on September 4. Decision was
reserved, and the court requested proposed findings of fact and
conclusions of law. No further motions as to Blue’s case were
made by the Army. After the testimony was completed in Blue,
the Army requested that the court issue findings and conclu
sions on each claim as testimony was concluded. This request
was denied. App. 729. The court stated its intention to file draft
findings under seal, but never did. On October 26, the Army
submitted its proposed findings and conclusions in the Blue case.
Dkt. 326. It did not suggest that the tried claims were frivolous
and made no motions as to them.
Settlements and Sanctions Hearings
On February 28, 1985, after the claims of six plaintiffs had
been tried, the parties entered into a settlement agreement.14 The
defendants agreed to pay $75,000 (with potential offsets) in ex
change for dismissal with prejudice of all claims that had not
yet been tried. The agreement also provided that: the Army
would continue to implement its affirmative action programs
in good faith; claims heard by the court were to be adjudicated,
with both parties waiving any right to appeal the rulings; and
the pending motions for sanctions were to be decided by the
court, with both parties reserving the right to appeal. The court
approved this agreement on March 4, 1985. App. 731, 762.
To deal with the sanction motions remaining, the court on
March 4 ordered bifurcated hearings (liability, then expenses).
The court directed that the hearings focus on two issues: whether
claims were frivolous or vexatious under Christiansburg and
whether claims in the final pretrial order were abandoned in
l'1 In February 1985, Mr. Chambers withdrew his appearance as lead in-court
counsel in order to accept a position as the Director-Counsel of the NAACP
Legal Defense and Educational Fund, Inc. Dkt. 343, 347.
10
bad faith. App. 1191a-t. It did not mention Rule 11, Rule 16 or
section 1927.15
“Liability” sanction trials consumed thirteen days in March and
April 1985. Again the court requested proposed findings of fact
and conclusions of law.16 On June 6, 1985 the Army was ordered
to file proof of fees and expenses incurred. App. 1171. During
this time, the judge issued numerous orders on motions, heard
23 days of testimony and argument, and received dozens of affi
davits and sets of proposed findings and conclusions. App. 29-35.
On July 31, 1985, the parties entered into a final agreement
dismissing all claims, and all claims for sanctions. App. 773. The
agreement did not apply to Harris or Blue. The court found the
agreement effective without the need for court approval. 679
F. Supp. at 1237.
The evidence on sanctions was deemed closed as of August
23, and final submissions with respect to the Blue and Harris
cases were filed on November 5, 1985 — nearly nineteen months
after the commencement of the Blue trial on the merits (on
which no decision had yet been rendered) and nearly eighteen
15 Although the Army’s motions were stimulated by the “dropping” of claims
(Blue) and withdrawals from the litigation (Harris), the Army regarded both
as evidence either of frivolousness or of some improper purpose from the outset.
App. 1051-52, 1099-1100. The court, on the other hand, launched the sanc
tion hearings almost a year later on the theory that the abandonment of even
a non-frivolous claim set forth in a pretrial order is sanctionable unless it was
“a good faith abandonment predicated upon some factual circumstances oc
curring after the entry of the pre-trial order.” App. 1191e. Plaintiffs’ counsel
objected to the new theory, correctly noting how the Army’s motions had been
transformed. App. 1191b-c.
18 Prior to the sanctions hearings, plaintiffs’ counsel consulted with clients to ex
plain that conflicts that originally arose among the multiple intervenors might
arise again, and received consent to continue representation. At the Harris
sanction hearings, however, in a ruling unanticipated by plaintiffs counsel, the
court allowed the Army to inquire concerning a claim that Harris had dropped,
before she withdrew her case, to eliminate conflict problems. App. 1210-33. Be
cause of the conflict created by allowing this inquiry, the court granted Harris’
counsel’s motion to withdraw, and substitute counsel was obtained. App. 1292.
The order granting leave to withdraw made no mention of any discipline for
any conflict, and the matter was not raised again during the hearings.
11
months after Harris had asked to remove her case from the
court’s docket. The Army made no sanctions motion as to the
Blue claims that were tried. Id. at 1315 n.173.
Years passed. Three days after Christmas in 1987, the court
released a memorandum opinion of nearly 500 pages. Dkt. 501.
Without observing any of the required procedures, the court
had adjudicated a violation of the disciplinary rules for a con
flict the court had earlier found to have been satisfactorily re
solved. In addition to awarding sanctions to the Army, the court
fined plaintiffs and their counsel nearly $38,000, an amount that
purportedly represented the pro-rata salaries of the judge and
his staff. The court also invited the Army to make a motion for
sanctions as to the Blue claims that were tried.
After post-trial motions, the court determined the amount
of fees to the Army for the tried Blue claims, vacated the sanc
tions imposed on Penda Hair, and vacated the disciplinary find
ings with respect to both Hair and Gilda Glazer. The court
denied Chambers’ motion that he personally bear the sanctions
imposed on all lawyers. Harris v. Marsh, 123 F.R.D. 204
(E.D.N.C. 1988); App. 1039-43. Thus, the final judgment im
poses the following fines and sanctions against:
Counsel for bad faith, and under 28 U.S.C. § 1927,
Rules 11 and 16, and the disciplinary rules:
Chambers $34,250.00
Sumter 15,750.00
Glazer 5,000.00
Chambers’ former law firm17 1,413.62
$56,413.62
Harris and Blue for bad faith and
Rule 11 (Harris only) 33,000,00
$89,413.62
17 The sole justification given for the sanction against the firm was that “a
number of other lawyers with the law firm participated in this case in vary
ing minor ways.” 679 F. Supp. at 1392.
12
Of this amount, $37,905 was directed to be paid to the clerk
of the court (approximately 45 % of which reflected fines for
the sanctions hearings). All parties and counsel listed above ex
cept Glazer are appellants here.
Summary of Argument
The court found the claims brought below to be frivolous.
In so doing it erroneously twisted the law of sanctions, ignored
the requirements of due process, and disregarded statutes and
procedural rules. These legal errors infect every aspect of the
court’s analysis, and the precedents they set would poison the
relationships between counsel and client, and between judge
and lawyer.
As a matter of law, the claims these attorneys pursued were
not frivolous under any reasonable meaning of the word. The
lower court came to its conclusions about frivolousness more than
five years after exhaustive document and deposition discovery,
more than four years after the filing of extensive pretrial orders,
more than three years after a partial trial on the merits and more
than two years after the close of prolonged sanction hearings
— thousands of hours of effort by all concerned. The court
retroactively applied adverse changes in the law and unfavorable
credibility determinations to find that the lawyers should have
known that the claims were frivolous from the beginning. By
doing so, it improperly made the lawyers insurers of the suc
cess of their clients’ claims. Ironically, critical precedents relied
on by the lower court were ultimately decided by the Supreme
Court to be wrong. Viewed from a proper perspective, and
against the correct law, the claims were not frivolous.
The court also erred as a matter of law in finding that the
lawyers violated their professional responsibilities to their clients.
It did so without affording them prior notice or an opportuni
ty to be heard, and in disregard of the court’s own rules. Fur
ther ignoring the requirements of due process, and specifically
the rules governing criminal contempt, the court also awarded
itself almost $38,000 as reimbursement for the salaries of the
judge and his staff. This type of fine, pitting court against
13
litigant, should never be allowed, and in fact has never been
sustained on appeal.
In addition to ignoring the due process clause, the lower court
flouted the intent of Congress. In enacting Title VII as a com
prehensive and conclusive remedy, Congress specifically pro
hibited the United States from recovering attorneys’ fees for
defending claims frivolously brought or maintained. To avoid
this prohibition, the lower court invoked 28 U.S.C. § 1927, Rules
11 and 16 of the Federal Rules of Civil Procedure, and its in
herent power to penalize precisely the same conduct. The na
tional civil rights policy cannot be so easily circumvented.
The district court also erred in construing section 1927 to
merely require a finding of negligence. It achieved this result
by disregarding overwhelming contrary judicial precedents and
eliminating the word “vexatious” from the statute. The court
likewise ignored the requirement that specific findings of sub
jective bad faith are necessary for the imposition of sanctions
under the bad faith exception to the American Rule. Here, the
court found bad faith in the attorney’s lack of professionalism,
a woefully inadequate predicate.
The number and magnitude of the district court’s legal er
rors require reversal. These errors are subject to de novo review
under the standard of review recently articulated by this cir
cuit in cases involving sanctions:
If the claim is of error in underlying factfindings
which infected the ultimate decision, review must pro
ceed under the clearly erroneous standard; if of error
of law infecting the ultimate decision, under the de
novo review standard. Only if the claim of error goes
exclusively to the impropriety of an ultimate exercise
of available discretion is review solely under the abuse
of discretion standard.
United Food ir Commercial Workers, Local 400 v. Marval
Poultry Co., 876 F.2d 346, 351 (4th Cir. 1989); see Hicks v.
14
Heckler, 756 F.2d 1022, 1024-25 (4th Cir. 1985) (reviewing de
novo whether substantial evidence supported government’s posi
tion under the EAJA). In Marval, the court found that the
district court had committed fully “reviewable error[s] of law”
in deciding whether a sanctioned party’s position had an
“arguable basis” in law. 876 F.2d at 351. Errors of law pervade
the lower court’s opinion here, including its conclusion that
claims were frivolous, and they are likewise fully reviewable.
15
Argument
I .
The District Court Erred in Finding That
Harris’ Claims Were Frivolous
Harris is a black woman who was a civilian employee at Fort
Bragg. She asserted nine claims of race discrimination: five pro
motion claims, one denial of proper job classification claim, two
denial of training claims (for 1980 and 1982), and a retaliation
claim encompassing harassment, intimidation and denial of
equal benefits of employment. App. 306, 310, 319, 326!s The
lower court itself found that two of Harris’ claims (retaliation
and 1980 denial of training) were not frivolous. 679 F. Supp.
at 1360-62!9 Had the district court examined the documentary
and other evidence accompanying the pretrial order (rather than
Harris’ reasons for dropping her claims and her knowledge of
Title VII law) and properly stated and applied the law, it should
have concluded that a prima facie case could have been establish
ed for each of the other claims.
A. A History of Discrimination Against Harris
Harris’ employment records show that she was a hard
working, self-motivated employee whose performance was often
rated outstanding, “markedly far beyond the requirements of
her job,” and commended by her superiors. See App. 1471-91
(employee performance ratings); App. 1520-31 (supervisory ap
praisals); App. 1532-41 (letters of commendation). There were,
however, suspicious circumstances suggesting that discrimina
tion tainted some of Harris’ appraisals.
18 The court found that Harris raised ten claims. 679 F. Supp. at 1339. It im
properly extracted “denial of equal benefits” as a separate claim when the
claim was simply part of a broader allegation of retaliation. See id. at 1233
n.34 (stating that Harris raised only nine claims).
19 No sanctions were awarded for the claims that the court agreed were non-
frivolous. 679 F. Supp. at 1365 111), 1370 131).
16
In 1979, she successfully grieved a claim of improper appraisal.
The Chief of COMPACT, Maj. Pratt, had recommended that
Lt. Col. Batts, Deputy Commander, HQ Command, reject Har
ris’ immediate supervisors’ determinations that Harris deserved
an outstanding performance appraisal. App. 1744. Pratt was far
removed from any direct observation or supervision of Harris’
job performance and had never before chosen to overrule the
appraisal of an employee’s immediate supervisor. App. 1744.
Harris complained, and after an investigation she received the
original “outstanding” rating rather than Pratt’s proposed
“satisfactory” rating. App. 1744-48, 1478, 1598, 1617.20
Moreover, prior to filing her complaint-in-intervention, Harris
had successfully pursued a grievance for discriminatory denial
of promotion. In May 1981, Harris had applied for a Military
Personnel Clerk position, GS-5. She was rated “best qualified,
referred for an interview, and was rejected in favor of white
selectees. App. 1514,1516-19. Harris filed an administrative com
plaint contending that her rejection was due to her race
and in reprisal for her EEO activities. App. 1732-33. An EEO
investigation determined that not only were the selectees less
qualified than Harris (one of the selectees had even received a
lower score by the rating panel) but one of the selectees per
sonnel files included letters of reprimand for misconduct. Fur
thermore, the selecting officials (who were white) admitted that
they had never reviewed the applicants’ personnel files. App.
1736-39.
The EEO investigation also determined that Harris was
treated differently in the interview process than the other ap
plicants: she had been given a short interview and was asked
questions unrelated to the prospective position. App. 1734-39.
Furthermore, Maj. Marshall, then Chief of COMPACT, had
20 Her supervisory appraisals were generally very good up to 1981. See App.
1601-23. See generally Gunby v. Pennsylvania Elec. Co., 840 F.2d 1108, 1117
(3d Cir. 1988) (aberrational appraisal may demonstrate pretext), cert, denied,
109 S. Ct. 3213 (1989); Torres v. County of Oakland, 758 F.2d 147, 152 (6th
Cir. 1985) (downgrading appraisal may demonstrate intent to interfere with
promotion).
17
asked Harris to transfer laterally to the promotion position one
week before the promotion was announced. App. 1734-39. The
selecting officials had asked Harris (but not other applicants)
the same question during her interview. App. 1736-39; App.
1464-65, Harris (July 9, 1985). After the EEO investigating of
ficer concluded that this promotion should be reevaluated, Harris
received the promotion. App. 1624-25.21
These incidents of discrimination not only provide relevant
support for the claims in litigation, but bolster the reasonableness
of the views of Harris and her attorneys that she had been the
victim of discrimination. E.g., Warren v. Habtead Indus., 802
F.2d 746, 752 (4th Cir. 1986) (harassment, threats, and general
atmosphere of discrimination are relevant).
B. Harris Could Establbh a Prima Facie Case on Her
Promotion Claims
Before turning to the evidence documenting Harris’ promo
tion claims, a brief discussion of the appropriate legal standard
is necessary. From the time the complaints below were filed until
the court rendered its final decision, the law concerning promo
tions was in flux. There was agreement as to the first three ele
ments of the prima facie case under the framework established
by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973): mem
bership in a protected class, application and qualification, and
rejection. Courts divided, however, both within and without this
circuit, on what additional showing was required. Compare Page
v. Bolger, 645 F.2d 227, 229-30 (4th Cir.), cert, denied, 454 U.S.
892 (1981), with Ambush v. Montgomery County Gov’t Dep’t
of Fin., 620 F.2d 1048, 1052 (4th Cir. 1980); see Holmes v. Bevi-
lacqua, 794 F.2d 142, 147 (4th Cir. 1986) (en banc) (where posi
tion does not remain open, plaintiff must show “some other
evidence that his race was a factor” in denial of the promotion).
As of the filing of the pretrial orders and before, the law
in this circuit was that the fourth prong could be satisfied
21 One year earlier, Harris received a priority referral for a GS-5 promotion
after the Chief of Recruitment and Placement determined that Harris had
not received proper consideration for a prior promotion. App. 1593.
18
simply by showing that the selectee was white. Ambush v.
Montgomery County, 620 F.2d at 1052. The district court,
however, applied the en banc decision in Holmes, even though
it was decided years after the complaints and pretrial orders
were filed. 679 F. Supp. at 1281,1288. This was plainly the wrong
standard for judging the reasonableness of the parties’ and their
attorneys’ conduct. See Lotz Realty Co. v. United States Dep’t
of Horn, b Urban Dev., 717 F.2d 929, 932 (4th Cir. 1983).
After the district court’s decision, the Supreme Court ruled
definitively on this issue in Patterson v. McLean Credit Union,
109 S. Ct. 2363 (1989). It held, as urged by Julius Chambers,
that the fourth prong could be satisfied by showing that after
plaintiff was rejected, the employer either continued to seek ap
plicants for the position, or that it filled the position with a white
employee. Id. at 2378.
The documentary evidence here proves that Harris could pre
sent prima facie cases as to all five promotion claims under the
correct legal standard: Harris applied, was found not only
qualified but highly qualified, was not selected, and the selectees
were white. In most instances there is also other significant
evidence of discrimination.
1. MPA 64-81 (Military Personnel Clerk, GS-5)
Harris applied for the promotion, was rated “best qualified,”
and was rejected by a white selecting official in favor of a white
male, Mr. Todd. App. 1492-1512; App. 1414-16, 1426-27, Harris
(July 9, 1985). By itself, this evidence establishes a prima facie
case. There is, however, additional evidence of race discrimina
tion. Harris had more relevant experience and had received more
merit awards than the selectee. App. 1506, 1510.22 The job
22 Harris received one of the highest evaluations of any of the applicants. App.
1494-97. Todd’s score was higher because of a subjective, non job-related
category. Under its former promotion practices (abandoned after this lawsuit
was filed), the Army considered non-job-related experience when scoring the
“experience” criterion and the “self development” category. See supra p. 5.
The difference in scores between Harris and Todd derived from the “self
development” category: Harris received 1.92 points and Todd received 9.59
points. App. 1506, 1510.
19
opening was for a position in the office Harris then worked in,
and under applicable guidelines, Harris’ application should have
been favored. App. 1415-18, Harris (July 9, 1985). There is also
evidence that Todd was pre-selected for the promotion: Harris
testified that she had read a note sent to her supervisor which
stated that “Mae Harris would go on the interview for Mr. Todd’s
job.” App, 1328, Harris (July 8, 1985).
The district court’s findings do not negate the elements of a
prima facie case. The court only refused to believe Harris’
testimony that she saw a note on pre-selection. 679 F. Supp. at
1348-49. Even if the court was correct in discrediting her
testimony, the lack of the note in no way vitiates Harris’ prima
facie showing. The court also ruled that the claim was frivolous
because Harris was found by the court not to be better qualified
than the selectee. 679 F. Supp. at 1349-50. Although this point
is certainly arguable, Harris was not under any burden to show
that she was best qualified, either to establish a prima facie case
or even to prevail. See Patterson, 109 S. Ct. at 2378. The district
court thus based its finding of frivolousness on an erroneous legal
conclusion.
2. MPA 94-81 (Management Assistant Position, GS-5)
Harris was rated “best qualified,” referred for the position,
interviewed by a white selecting official, and rejected in favor
of a white selectee. App. 1751-65; App. 1427-30, Harris (July
9, 1985).23 This was a prima facie showing of discrimination.
There was additional evidence to support Harris’ claim. She
had previously worked as a management assistant and had done
the same type of work the promotion position required. The
selectee had less experience at Fort Bragg than Harris and had
served as a military personnel clerk for a shorter period of time.
Moreover, Harris’ interview experience led her to believe that
the selecting official had no interest in her application: “I just
got the feeling that even though the questions she asked me —
23 Harris’ scores were very similar to Wells’ (the selectee) in all categories other
than self-development, where Harris received 1.93 points compared to Wells’
8.36. App. 1758, 1762.
20
she didn’t ask that many questions. There wasn’t interest.” App.
1341, Harris (July 8, 1985).24
The district court ignored this prima facie showing, focus
ing on other evidence that Harris articulated in support of her
claim, such as her belief that blacks were not adequately
represented in the office, and noting her failure to file a
grievance on this promotion. 679 F. Supp. at 1350-51. These find
ings do not vitiate Harris’ prima facie showing; they simply
represented a rejection of Harris’ evidence of pretext.25
3. MPA 210-81 (GS-5 Trainee for GS-7 Management
Assistant Position)
Harris was rated “best qualified,” was rejected by a panel of
two white selecting officials, and the selectee was white. App.
1770, 1781-84; App. 1431-33, Harris (July 9, 1985).26 The district
court again made no finding that negated these elements of a
prima facie case. Instead, it simply rejected Harris’ testimony
that she believed the length of her interview was evidence of
discrimination, and focused on the selectee’s supposedly superior
qualifications. 679 F. Supp. at 1351-52. Harris had no burden,
however, to prove that she was as or more qualified than the
selectee. See Patterson, 109 S. Ct. at 2378.
4. MPA 196-82 (GS-5 Trainee for GS-7 Management
Assistant Position) and MPA 5-83 (Management
Assistant Position, GS-5)
In both of these claims Harris had met all of the qualifica
tion requirements, but was not rated “best qualified” and
24 Harris had experienced a similar interview in 1981, complained, and was
awarded the promotion after an EEO investigation noted a short interview.
See supra p. 17.
” The court pointed to Harris’ failure personally to investigate facts relating
to the claims such as talking to other interviewees. 679 F. Supp. at 1351. She
properly relied on her attorneys to do so, and the evidence shows that they
adequately investigated the claim.
" Harris’ low total score, 63.61, again derived from the self-development
category, in which she received 1.93 compared to the selectee Wells’ 8.43. Harris
had a higher performance evaluation (10 compared to Wells’ 9.9); and there
were small differences in experience (Harris’ 43.68 compared to Wells’ 44.8)
and awards (Harris’ 8 compared to Wells’ 10). App. 1781, 1785.
21
therefore was not referred for an interview. In both claims, the
selectees were white. App. 1573-80; App. 1438-40, Harris (July
9, 1985); App. 1542, 1545-46.27
Even if Harris was not “best qualified” under the Army’s in
ternal classification system, she was still qualified as a matter
of law under McDonnell Douglas. To raise an inference of
discrimination, a plaintiff need only show she has met the
minimum qualifications for the promotion position, and is not
required to prove her qualifications relative to the other ap
plicants. 411 U.S. at 802 (Court did not consider or compare
the other applicants’ or selectees’ performance or experience);
Furnco Constr. Corp. v. Waters, 438 U.S. 567, 570-76 (1978)
(plaintiff satisfied burden of establishing a prima facie case,
where the Court found that the plaintiff was qualified, but not
highly qualified).28
This principle has been applied to military promotion prog
rams similar to the Army’s. In Robinson v. Lehman, 771 F.2d
772 (3d Cir. 1985), the employer’s promotion system had rated
the plaintiff, a naval civilian employee, “qualified” and “highly
qualified,” but a maximum referral rule barred the plaintiffs
referral. The court held that the plaintiff satisfied the quali
fication prong of McDonnell Douglas. Id. at 777 & n.13; see Grier
v. Secretary of the Navy, 677 F. Supp. 362, 363 (E.D. Pa. 1987).
Thus, the district court committed legal error in concluding
that these claims were frivolous simply because Harris was not
referred. 679 F. Supp. at 1355-57. Moreover, instead of examining
27 Harris should have been rated “best qualified” for MPAs 5-83 and 196-82,
as she had for the same positions one year earlier. See App. 1751, 1770. One
year later, after Harris had gained additional experience (and after she raised
complaints of racial discrimination), she was suddenly no longer “best
qualified.”
“ See Mitchell v. Baldrige, 759 F.2d 80, 85, 89 (D.C. Cir. 1985); Foster v. Ar
eata Assocs., Inc., 772 F.2d 1453, 1460 (9th Cir. 1985), cert, denied, 475 U.S.
1048 (1986); Hawkins v. Anheuser-Busch, Inc., 697 F.2d 810, 813 (8th Cir.
1983); Burrus v. United Tel. Co., 683 F.2d 339, 342-43 (10th Cir.), cert, denied,
459 U.S. 1071 (1982); Lynn v. Regents of Univ. of Cal., 656 F.2d 1337, 1344
n.18 (9th Cir. 1981), cert, denied, 459 U.S. 823 (1982).
22
the elements of the prim a facie case, the court looked at Har
ris’ personal investigation of her claim, such as her failure to
examine the selectee’s qualifications. Id. at 1353-56. The court
never explained, however, why a party cannot rely on her at
torney to make such an investigation, or why she should in
vestigate a proposition that she has no burden to prove and that
does not even come in issue until the defendant submits evidence
as part of its rebuttal.
The court’s analysis also reflects a serious misunderstanding
of Title VII law: it erroneously believed that a discrimination
claim must be frivolous if a white is rejected for promotion at
the same time a black is rejected. Id. at 1356. If this were the
standard, virtually no Title VII plaintiff could succeed.
C. Harris Could Establish a Prima Facie Case on
Her Job Classification Claim
Harris performed substantially the same job as a white man
and possessed almost identical work experience, yet was paid
less. She thus could establish a prima facie case of improper job
classification. The lower court articulated the governing
standard for establishing a discriminatory job classification
claim: “plaintiff must prove she is (1) a member of a protected
class and (2) paid less than a member of a different race for
work requiring substantially the same responsibilities.” 679
F. Supp. at 1357 (citation omitted).
Courts have evaluated the second factor by examining the
nature of the employee’s actual duties. See Epstein v. Secretary,
United States Dep’t of Treasury, 739 F.2d 274, 277 (7th Cir.
1984). Jobs are sufficiently comparable if they require substan
tially the same skill, effort, responsibilities, and are performed
under similar working conditions. See Beall v. Curtis, 603 F.
Supp. 1563, 1577, 1581 (M.D. Ga.), aff’d mem., 778 F.2d 791
(11th Cir. 1985). Although Harris was classified a GS-4, a lower
grade with lower compensation than a white man, Eldridge,
a GS-5, they performed essentially the same job. App. 1452-54,
Harris (July 9, 1985). They assisted each other in their work and
neither individual served in a supervisory capacity. App. 1453-56,
Harris (July 9, 1985).
23
The court below essentially conceded that Harris had made
out a prima facie case: “Standing alone, these facts might sup
port a prima facie case of unequal job classification and pay
under Title VII . . . ” 679 F. Supp. at 1357. It further found,
however, that the positions had different job descriptions and
Eldridge had more experience than Harris. Id. at 1357-58. It
was legally erroneous to conclude that Harris could not have
stated a prima facie claim based on these two grounds.
First, to prove a prima facie case, the plaintiff need only show
that the work actually performed was the same; not that the job
titles were the same. See, e.g., Epstein, 739 F.2d at 277. Substan
tively, Harris and Eldridge performed the same job, and the dif
ferences in job descriptions were inconsequential.29 Moreover, the
job descriptions did not accurately reflect Harris’ and Eldridge’s
working relationship. App. 1452-54, Harris (July 9, 1985).
Second, the court erred as a matter of law in requiring Har
ris to prove she was more experienced than Eldridge. Eldridge’s
assertedly greater qualifications was a defense, not an element
of a prim a facie case See Plemer v. Parsons Gilbane, 713 F.2d
1127, 1137 (5th Cir. 1983). Indeed, the court’s own language
shows that these points go only to rebuttal. See 679 F. Supp.
at 1357. In any event, this defense is insubstantial. In 1980,
Eldridge had worked for the civil service for 14 or 15 years, Har
ris had been an Army employee for 12 years. App. 1469-70
(Eldridge Dep.), 1295-96, Harris (March 27, 1985). There was,
moreover, no finding that this difference in experience had any
effect on whether the two were actually performing the same
duties. Harris’ claim of improper job classification thus could
squarely establish a prima facie case.
29 Indeed, after Harris’ and Eldridge’s supervisor (Whitlock) left the Army,
Harris was assigned Whitlock’s duties, but retained her former responsibilities,
job description and salary. When Harris asked her commanding officer, Maj.
Marshall, about this situation he told her that Whitlock believed that Harris
was the only employee who knew and was capable of performing Whitlock’s
duties. One explanation for Harris’ and Eldridge’s different descriptions and
grades had been that Eldridge was supposed to perform Whitlock’s job in
Whitlock’s absence. However, upon Whitlock’s departure, Harris (rather than
Eldridge) was required to perform Whitlock’s job. App. 1651-52, 1655-56.
24
D. Harris Could Establish a Prima Facie Case of
Discriminatory Denial of Training
During 1982 Harris was an EEO counselor. She was supposed
to attend supervisor school, the only facet of EEO training she
lacked. Harris repeatedly applied for this training and, although
she was qualified, the training was always denied. App. 1402-03,
Harris (July 8, 1985); App. 1447-49, Harris (July 9, 1985).
Under McDonnell Douglas, a prima facie case of discrim
inatory denial of training requires proof that the plaintiff:
belonged to a racial minority; sought and was qualified for train
ing which her employer offered to others; was rejected; and after
rejection, training remained available and others received it.
Smith v. WGBH-TV, 26 Empl. Prac. Dec. (CCH) 1 31,891 (D.
Mass. May 14, 1981).30 Harris could have met these elements:
she applied, was qualified, and was summarily denied training
that was offered to others.
The district court concluded that the training claim was
frivolous because other black employees did receive training.
679 F. Supp. at 1359-60. This was legally erroneous. A prima
facie discrimination claim does not require proof that only whites
received the benefit sought.31
There is also other evidence of discrimination. Harris had suc
cessfully pursued a grievance for a nearly simultaneous in
terference with her EEO duties. In 1981, Major Marshall had
* The district court incorrectly applied a test applicable to a claim of inade
quate training. 679 F. Supp. at 1358-59; see Long v. Ford Motor Co., 496 F.2d
500, 502 (6th Cir. 1974); Seymore v. Readers Digest Ass’n, 493 F. Supp. 257,
260 (S.D.N.Y. 1980); Taylor v. Safeway Stores, Inc., 365 F. Supp. 468, 472 (D.
Colo. 1973), a ff’d in part ir rev’d in part, 524 F.2d 263 (10th Cir. 1975).
31 See Walker v. St. Anthony’s Med. Center, 881 F.2d 554, 558 (8th Cir. 1989);
De Lesstine v. Fort Wayne State Hasp., 682 F.2d 130 (7th Cir.), cert, denied,
459 U.S. 1017 (1982); Pitre v. Western Elec. Co., 843 F.2d 1262 (10th Cir. 1988);
Peters v. Lieuallen, 693 F.2d 966 (9th Cir. 1982); see also Connecticut v. Teal,
457 U.S. 440, 455 (1982) (employer has no license to discriminate against some
employees on the basis of race merely because he favorably treats other
members of the race).
25
requested the removal of Harris’ EEO duties. App. 1636-43,
1648, 1655; App. 1456-61, Harris (July 9, 1985). Harris’ direct
supervisors had not objected to her continued service nor pro
posed the removal to Marshall. App. 1637-43, 1655; App. 1299,
1308-09, Harris (March 27, 1985). She challenged the propos
ed action, alleging that Marshall was retaliating for her job
classification complaint. An Army investigator found that: Mar
shall’s business purpose explanation for requesting the removal
of Harris’ duties “had no merit whatsoever”; Marshall had a
distorted view of the EEO program; Harris’ superior officers,
Marshall and Jenkins, admittedly regarded Harris’ use of the
EEO complaint system and the assertion of her rights as the
acts of a “troublemaker”; and Harris’ complaint of reprisal was
supported by the evidence. App. 1636-43. As a result, Harris was
reappointed as an EEO counselor and Marshall was required
to attend supervisory responsibility training sessions. App.
1626-29, 1642-43; App. 1318-19, Harris (July 8, 1985).
The concurrent denial of Harris’ application for EEO training
in 1982 must be viewed in this same context.32 Initially, the Com
mander of COMPACT had unsuccessfully attempted to relieve
Harris of her EEO duties and had been chastened for his ac
tions. Then, the Army denied Harris the opportunity for her re
maining EEO training. This evidence simply buttresses the
strength of the prima facie claim. Thus, this claim, like all of
Harris’ claims, could present a prima facie case of discrimination.
H.
The District Court Erred in Finding That Blues
Claims Were Frivolous
The procedural history of Blue’s claims reveals that the district
court not only erroneously characterized claims as dropped, but
incorrectly expanded the scope of the Army’s motion for sanctions
against Blue. In any event, none of the claims were frivolous.
32 See McDonnell Douglas, 411 U.S. at 804 (employer’s treatment of employee
during term of employment relevant to determining whether non-
discriminatory justification is pretextual).
26
The pretrial brief for Blue’s individual case was filed on April
3, 1984. App. 1806. It stated that Blue was seeking individual
relief only with respect to MPA 273-79 and 303-79. App. 1807-08.
Under 273-79, Blue claimed she had been discriminatorily
denied application of a highly qualifying criteria and that the
85% Rule improperly prevented her referral. Under 303-79, Blue
claimed she had been denied promotion because of her race,
because of the 85 % R ule, and because of a low appraisal that
was given in retaliation for her equal employment opportunity
complaints. App. 1807-08.
Three days later, the Army filed a motion for sanctions charg
ing that Blue had “dropped” four promotion claims: 278-79,
442-80 (neither of which was even included in the pretrial
order),33 285-78, and 67-83. The Army did not contend that Blue
had dropped the other promotion claims listed in the pretrial
order, which it obviously believed were not dropped or had been
properly deferred until Phase II.34 App. 1045-58.
Its motion as to three of the four dropped promotion claims
was completely unfounded. All three had been disposed of with
court permission: 278-79 and 442-80 because of conflicts with
33 The declaration annexed to the Army’s April 1984 motion for sanctions er
roneously asserted that Blue dropped her claims to MPA’s 278-79 and 440-80
due to conflict (App. 1055-58) when, in fact, Blue dropped MPA 287-79 and
442-80 for reasons of conflict. App. 1200-09.
33 In the pretrial order, the Army listed only two “triable” issues for Blue:
whether she ever received unfair performance appraisals because of her race;
and whether she was ever disciplined on account of her race. App. 122. Addi
tionally, the Army stated by way of defenses that Blue was disruptive and did
not abide by the rules, and that she was properly appraised and properly
disciplined. App. 147. There was no mention of Blue’s promotions in the Army’s
statements of issues and defenses. The Army also stated in the order its
understanding that the promotion process at Fort Bragg was not an issue in
the determinations of the cases of the named plaintiffs, and that the process
would be an issue only after the conclusion of the individual cases. App. 137;
see App. 1804.
27
other intervenors, and 285-78 had been ruled time barred. App.
1200-09; 679 F. Supp. at 1322-23 n.187.35
On May 21, Blue’s counsel responded, pointing out that MPA
285-78 was time barred by court order, but that it would still be
presented as background to MPA 303-79 (both involved a dispute
about the same HQC). App. 1071-72. With respect to MPA 67-83,
counsel stated Blue intended to prove this claim in Phase II. The
response also pointed out that the Army’s motion was untimely
because Blue intended to present evidence on other promotion,
training and other experiences in Phase II, even though she did
not seek individual relief for them in Phase I. App. 1073-74.
On August 2, Blue’s counsel again clarified which claims had
been asserted only for background purposes, to be proved in
Phase II: discrimination in rating and ranking (for MPA 285-78);
discrimination in referrals and selection (for MPAs 285-78,
274-79, 277-79, and 440-80); discriminatory discipline; and
retaliation. App. 712-28. This submission also stated that Blue’s
promotion experiences in 1979 would be used as background
evidence for the challenge to the 85% Rule. App. 719-20.
This history shows that Blue did not improperly drop any
claims. Some claims were eliminated because of conflicts or were
time-barred. The remainder were intended to be background
claims to be put into evidence in Phase II. Until after Blue’s case
in-chief was finished her counsel reasonably believed that Phase
II was mandatory. The court then decided that it was not and
Phase II was never held. Thus, no sanctions are appropriate for
these background events.
The lower court’s conclusions concerning MPAs 274-79, 277-79
and 440-80 are erroneous because these claims were not included
in the Army’s April 1984 motion. The first time the Army
35 The Army also contended that Blue had dropped a 1979 quality step claim,
her training and detailing claim, and her discipline claim. The claims for quali
ty step increase and training/detailing are not in issue on this appeal because
the lower court found that the Army presented no evidence that these claims
were frivolous. 679 F. Supp. at 1323; see infra pp. 43-45 (discussing discipline
claim).
28
mentioned them was in an affidavit filed in September 1985,
after the close of evidence in the sanctions hearings.36
In any event, the court’s conclusions about frivolity are wrong.
Once the claims are properly analyzed, it is easy to see that they
were not frivolous. Before analyzing the individual claims,
however, it is helpful to put Blue’s employment at Fort Bragg
in context.
A. Blue’s Employment Record
Blue was initially hired on July 30, 1973 as a Nursing Assist
ant, GS-4, in the maternity ward at Womack Army Hospital.
App. 2660. For two years, she worked in the maternity ward’s
labor and delivery room, where she became familiar with
operating room procedures and protocol. She then transferred
to DENTAC and took a voluntary downgrade to Dental Assis
tant, GS-3. App. 2662.
On September 19, 1976, Blue was promoted to Dental Assis
tant, GS-4, at Dental Clinic No. 1. App. 2663. In December,
Blue was assigned to Dental Clinic No. 6 (“DC-6”). From May
1976 through October 1978, she worked primarily in the Oral
Surgery Department of DC-6, and then she rotated through the
various departments. App. 1976, Blue (April 19, 1984). Her Of
ficial Personnel File (“OPF”) showed that from October 1978
through March 1979, she was moved from oral surgery and
worked in restorative dentistry, and then performed chairside
assistance to dentists (for varying periods dependent on the policy
of the current Officer in Charge), in all phases of general den
tistry: restorative; oral surgery, prosthetic, endodontic, periodon
tic, and prosthetics, fixed and removable. App. 1977-79, Blue
(April 19, 1984); App. 2647-55.
36 App. 1928. The court’s observation that plaintiffs “cannot now be heard
to complain about defendant’s supplemental request” should be rejected. 679
F. Supp. at 1367 n.256. Plaintiffs filed a brief in response to the affidavit arguing
that it was untimely and unfair because the claims had not previously been
raised in the sanctions proceedings. App. 1930-31, 1954-55.
29
Blue supplemented her work skills by participating in a
number of training programs. See App. 2633-45. She consistently
received “satisfactory” annual performance appraisals, and when
the rating system was changed in 1982, Blue received the
equivalent “fully successful” rating. App. 2928-31, 2935-36,
2941-44, 2946-47, 2954, 2966-67, 2972-73. She also received a
number of letters of appreciation and commendation for her
job performance at Fort Bragg. App. 2681-86.37
B. The Tried Claims Presented Pima Facie Cases of
Discrimination
1. MPA 273-79 (General Dentistry Specialty, GS-5)
a. Disparate Treatment
Blue applied for this position, met the eligibility requirements,
and was rated qualified. App. 3234. The rating and ranking
panel, however, erroneously determined that Blue did not satisfy
HQC #2. In addition, the white woman selected for the pro
motion (Brocki) herself lacked HQC §2. Blue could prove that
she was discriminatorily denied HQC #2 and that she was suf
ficiently qualified for this promotion. She thus presented a prima
facie case under McDonnell Douglas.
HQC §2 required: “ Knowledge of the equipment material
used in oral surgery, pedodontic, periodontic, endodontic, pros-
thodontic, oral medicine and pathology at specialty level.” App.
3233. Blue had gained experience in all these areas from rotating
for over one and one-half years in DC-6’s various departments
37 One letter of commendation is of particular interest. It is a Feb. 6, 1979
letter from James T. Lamb, DDS, assigned to DC-6 for the prior 2-1/2 years:
Ms. Blue goes out of her way to find work. If a doctor is without
an assistant, Ms. Blue will shun her break in order to aid him.
In addition her personality is a tremendous asset in easing the
tension . . . in dental treatment. Ms. Blue [is] a dental auxiliary
of the highest calibre, deserving of the maximum grade that she
can obtain.
App. 2681, 2843.
30
and as a nursing assistant at St. Lukes and Womack Hospitals.38
Blue’s OFF also documented that she had gained the requisite
experience to satisfy HQ C #2. Amendments to her personal
qualifications statements outlined her duties as a dental assist
ant in oral surgery, endodontics and prosthodontics, and a Cer
tificate of Experience documented her work in endodontics, or
thodontics, periodontics, and prosthodontics. App. 2832-41. Blue
was nevertheless denied credit for her relevant work experience.
Blue’s application for MPA 273-79 was improperly evaluated
in other ways. Her score from the rating and ranking panel in
correctly reflected her letters of appreciation. App. 1987-88, Blue
(April 19, 1984).39 Compare App. 3243 with App. 2681-86.'“
38 App. 1983-86, Blue (April 19, 1984); App. 2650-55. Although the Army
asserted that there were no “specialists” at DC-6 and that no oral surgery was
performed there, its own witnesses testified that they believed that they con
ducted oral surgery at DC-6. App. 2276-77, 2286, Jones (April 25, 1984). The
Army’s counsel later led them into other characterizations. E.g., App. 2240,
2243, Jones (April 25, 1984). Moreover, DC-6 officials had given Blue and
other employees reason to believe that training in oral surgery in DC-6 would
provide the assistants with experience necessary to qualify for GS-5 assistant
position in oral surgery. App. 2487-89, Cave (Aug. 30, 1984).
Blue Brocki
Experience 62.25 56.25
Award 4.00 4.00
Appraisal 5.66 10.00
Self Dvlpt. .51 1.72
Total 72.42 71.97
App. 3243, 3247. Apparently, all applicants for this MPA were rated by the
panel even though most were not rated highly qualified. This was at variance
with the usual procedure where only highly qualified applicants were rated.
See supra p. 5.
40 She received no credit for Dr. Lamb’s Feb. 1979 Letter, see supra n.37, nor
for a May 14, 1976 Letter of Commendation from Silar Crase, Director of
DC-1: “personal congratulations upon your outstanding performance of duties
which reflects the highest credit upon you as an Oral Surgery Assistant.” App.
2685. The lower court excused the omission of Crase’s letter because it found
the letter “unofficial” and “explained” the exclusion by stating that Crase’s
letter “refers to the same achievement evidenced by another letter of com
mendation” which Blue had received, that same day, from her direct super
visor. 679 F. Supp. at 1249 & n.72.
31
Other applicants were given credit for experience outside of Fort
Bragg. See, e.g., App. 3251-56, App. 1995-96, Blue (April 19,
1984). Blue received no credit for her experience at Womack
or St. Luke’s Hospitals, App. 3244; see App. 1988, Blue (April
19, 1984), yet still received a higher score for experience than
the selectee. Furthermore, Blue’s overall score, even including
the discriminatory 1979 appraisal, was still higher than three
of the people referred for the interview, including the selectee.
App. 3245-48, 3257-60, 3261-63.
The selecting official, Col. Morgan, claimed that he believed
Brocki was more qualified than Blue. Morgan admitted,
however, that he had never reviewed Blue’s OPF, nor the OPF
of any of the other applicants, and knew nothing about Blue’s
knowledge, education, training or experience.41 In fact, Morgan
had never worked with or observed the performance of the
selectee. An officer who assisted Morgan in interviewing the ap
plicants also failed to read any of the applicants’ personnel files.
App. 2447, Jacobson (Aug. 29, 1984).
The Army itself, moreover, had found the selectee, Brocki, in
essence lacked HQC §2. This MPA required the employee to assist
the dentist in the specialty areas of dentistry including periodon
tics. App. 3233. Nearly simultaneously with Brocki’s selection
for this position, the Army found Brocki unqualified for a dif
ferent promotion, MPA 274-79, because she lacked “knowledge
of direct chairside assisting [sic] in periodontal procedures” in
a non-specialty capacity. App. 3189, 3202-03. This contradic
tion was never explained.
Merely because the court chose to credit defendant’s evidence
with respect to Blue’s HQC §2 qualification, it determined that
41 App. 2379-83, 2387, Morgan (Aug. 29,1984). Morgan claimed that he could
not recall any meetings with Blue App. 2362-63, Morgan (Aug. 29, 1984).
However, Blue testified that she had met with Morgan in 1979 and 1980 on
three occasions, twice to discuss discriminatory practices at DC-6. App.
2507-10, Blue (Sept. 4, 1984). Blue met with Morgan in December 1979 to
discuss whether it was necessary to work with a specialist to be qualified for
the GS-5 promotions, because if so Blue wanted to know if the dental assistants
in DC-6 could rotate into other clinics to get the requisite experience. App.
2507-10, Blue (Sept. 4, 1984).
32
Blue failed to present a prima facie case. See 679 F. Supp. at
1288. The court’s credibility determination did not vitiate the
prima facie case that Blue presented.42
b. Disparate Impact
Blue also established a prim a facie claim under MPA 273-79
using a disparate impact theory: the 85 % Rule prevented her
referral. Looking at all the evidence (rather than just that
presented in Blue’s trial),43 the disparate impact claims were not
frivolous.44 The Army’s abandonment of the 85 % and Ten Refer
ral Rules after the commencement of these actions is compel
ling proof. William Dickerson, Chief of Fort Bragg’s Recruitment
and Placement Division (called by plaintiffs as an adverse witness)
testified that the Army had determined that both the 85 % and
Ten Referral Rules may have adversely impacted minorities. App.
2154-59, 2163-64, 2167, 2176, 2187, Dickerson (April 24, 1984);
42 The Army introduced testimony from Fort Bragg employees and military
personnel in an effort to rebut Blue’s case. These witnesses (or their superiors)
were not without an interest in the litigation.
43 Complete statistical evidence on the 85 % Rule was not presented in Blue’s
case-in-chief because plaintiffs anticipated presenting such evidence in Phase
II of the proceeding. See App. 560-65, 581-90. The district court thus granted
a Rule 41(b) motion as to 85 % Rule claims at the close of Blue’s case-in-chief,
but expressly provided that plaintiffs were at liberty to move for reconsidera
tion upon a showing of further evidence. App. 695-96. After this ruling, on
June 1, plaintiffs filed a list of witnesses affected by the 85 % Rule, listing Blue’s
promotion claims — 274-79, 277-79, 303-79 and 440-80 — that were intend
ed to be presented in Phase II. App. 718-19; see App. 1819, 1822. Subsequent
ly, on July 5 and August 28, the court filed additional orders changing the
definition of proof required in Phase I of the litigation and ruling for the first
time that Phase II was optional. App. 702-07, 1828; see App. 708-11; cf. App.
2230 (referring to only Phase III as “optional”). Accordingly, in the very next
trial (Ballew), plaintiffs’ counsel presented further statistical evidence con
cerning the 85% Rule See App. 1865.
44 To show disparate impact, the plaintiff has the initial burden of proving
that the challenged employment practice selects or designates employees in
a racial pattern significantly different from the general pool of applicants.
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). The burden then shifts
to the employer to articulate the job relatedness of the criteria. Texas Dep’t
of Community Affairs v. Burdine, 450 U.S. 248 (1981).
33
App. 2593, 2595-96, 2601, 2615-16 (Dickerson Dep.). He con
ceded that there was no business necessity for the rules, and that
the Army eliminated them “ in the interest of referring more
minorities and women.”45 CPO official Horne (contrary to the
court’s finding) also admitted that the defendants had recognized
that the 85 % Rule may have served as a barrier to minority ad
vancement, and so they were “taking action to correct it.”46
During the Ballew trial, plaintiffs’ statistical expert (Dr. Par-
row) demonstrated a discriminatory impact under EEOC
guidelines. App. 1866. Parrow showed that blacks were referred
at a rate less than 80% of white applicants: 82.56% (white)
versus 58.14% (black). App. 1867. Four-fifths of the white refer
ral rate was 66%, which under the “four-fifths rule” illustrated
disparate impact. App. 1867.47
The district court’s post hoc determination of frivolousness
is inconsistent with its conduct during the Ballew trial. The Army
filed a Rule 41 motion to dismiss the 85 % Rule claim at the
close of Ballew’s case. Both sides submitted substantial briefs.
45 App. 2155-56, 2165, Dickerson (April 24, 1984). Dickerson, who was evasive
and hostile on examination by plaintiffs’ counsel (679 F. Supp. at 1276), later
purported to retract this statement on examination by the Army with the “ex
planation” that he had not understood what the term “business necessity”
meant. App. 2180. That the Army eliminated the rule shows its lack of business
necessity, whether or not Dickerson changed his testimony.
44 App. 2590-91 (Horne Dep.); see 679 F. Supp. at 1276. During Blue’s case,
the court had found two critical pieces of plaintiffs evidence inadmissible:
a racial breakdown of employees, and the deposition of William Dickerson.
The court later reversed the second ruling. 679 F. Supp. at 1275-76 n.113. The
first exhibit provided a basis for non-expert analysis showing the discriminator)’
effect of the 85 % Rule. App. 2200-01, 2222-24. Thus, the court erred in stating
that plaintiffs failed to make “even the simplest of statistical presentations”
during Blue’s trial. 679 F. Supp. at 1298 n.149.
47 An inference of adverse impact arises “[i]f the selection rate for a protected
class is less than 80 % of the selection rate for the group selected at the highest
rate.” Chisholm v. United States Postal Serv., 665 F.2d 482, 495 n.22 (4th Cir.
1981); see also Connecticut v. Teal, 457 U.S. 440, 443 n.4 (1982); NAACP v.
City of Mansfield, 866 F.2d 162 (6th Cir. 1989); Bernard v. Gulf Oil Corp.,
841 F.2d 547 (5th Cir. 1988).
34
App. 1831, 1865. Nearly two months later, the court granted
the Army’s motion, noting that both parties had submitted “ex
tensive and excellent briefs,” and granting plaintiffs leave to move
to reconsider the ruling if further evidence on the 85 % Rule
were presented later. App. 1890. No memorandum opinion was
issued and the court did not suggest then that the 85% Rule
claim was frivolous.
Reflecting the legal uncertainty surrounding this issue, on
December 18 the court requested supplemental briefs on the mo
tion in light of this Court’s ruling in Bazemore v. Friday, 751
F.2d 662 (4th Cir. 1984), aff’d in part ir vacated in part, 478
U.S. 385 (1986), on remand, 848 F.2d 476 (4th Cir. 1988). App.
1892. Roth sides submitted briefs reflecting substantial disagree
ment about the import of Bazemore. App. 1894, 1899. One
month later the court decided that the 85 % Rule claim should
be dismissed. No memorandum opinion was issued. App. 1922.
The Bazemore decisions show that the district court here took
too cramped a view of plaintiffs’ statistical evidence. In Baze
more, a split panel of this Court affirmed a finding that black
employees failed to establish prima facie cases of disparate treat
ment and that plaintiffs’ statistical proof failed to show a prima
facie case of disparate impact. The Supreme Court reversed and
remanded, stating “ [t]he court’s [Fourth Circuit] view of the
evidentiary value of the regression analysis was plainly incor
rect.” 478 U.S. at 400. The Court noted that statistics are not
to be viewed in a vacuum: “A plaintiff in a Title VII suit need
not prove discrimination with scientific certainty . . . . Whether,
in fact, [statistics] . . . carry the plaintiffs’ ultimate burden will
depend in a given case on the factual context of each case in
light of all the evidence presented by both the plaintiff and the
defendant.” Id. (citations omitted) (emphasis in original).
The district court’s depiction of Parrow’s statistical proof failed
to take into consideration the other facets of plaintiffs proof
of discrimination, which included the Army’s post-complaint
abandonment of the 85 % and Ten Referral Rules together with
the testimony of Dickerson and Horne that these employment
practices may have adversely impacted minorities.
35
Plaintiffs’ case was further bolstered by the Army’s own
statistics. The Army’s Multi-Year Affirmative Action Program
Plan (“AAP”) and Federal Equal Opportunity Recruitment
Program (“FEO RP”) were based on statistical determinations
that minority employees were underrepresented at Fort Bragg.
App. 73-74.4,5 In total, the evidence presented a prima facie
claim.
2. MPA 303-79 (Dental Assistant, Oral Surgery,
GS-5)
Blue was rated best qualified but not referred for an inter
view, because she did not receive a score within 85 % of the top
score received by an applicant. The selectee was white. App.
1998-2003, Blue (April 19, 1984); App. 2703, 3036-39. This
established a prima facie case under McDonnell Douglas. See
supra p. 22.
There is additional evidence of discrimination. Army officials
made repeated “errors” when evaluating Blue’s application:
Blue received five letters of commendation, but her application
was credited with only four. App. 2681-86, 3038; App. 2004,
Blue (April 19, 1984). Other applicants received credit for all
of their letters of commendation. See, e.g., App. 3059 (appli
cant received five or six letters of commendation and her ap
plication was credited with six points). Blue received no credit
for her experience as a nursing assistant at Womack or at St.
Luke’s Hospital. App. 3039; App. 2004, Blue (April 19, 1984).
At least one other applicant, however, received credit for non
dental experience both at and outside Fort Bragg. See, e.g., App.
3049. In a prior promotion, MPA 285-78, Blue had received
credit for her non-dental experience at Womack. See App.
2991-92.
48 Defendants Multi-Year AAP for Fiscal Years 1982-1986 noted underrepresen
tation of minority employees in several areas including: Professional Entry
Level (GS5-8) (black women); Clerical Entry Level (GS1-4) (black men); Ad
ministrative Entry Level (GS5-8) (black men and women); Technical Entry
Level (GS3-5) (black men); Clerical Mid-Level (GS5-6); Technical Mid-Level
(GS6-7) (black men and women). App. 73, 75
36
As had often occurred when Blue applied for a promotion,
her relevant experience was initially ignored, and she was not
credited with two of the highly qualifying criterion. In this
MPA, Blue was found to lack HQC #3: “knowledge of operating
room protocol and ability to function as an operating room
scrub technician.” App. 2712. Blue complained to Jean Byrd,
the staffing specialist, that she had operating room experience
and that such experience was reflected in her official personnel
file.49
The lower court found the claim was frivolous because Blue
failed to prove that she was the best qualified applicant. 679
F. Supp. at 1291-92. As Patterson shows, she was under no such
burden. The lower court erred in finding this claim to be
frivolous.
Blue also established a prima facie case for MPA 303-79 under
a discriminatory appraisal theory. On December 5, 1979, after
complaints to the union in 1978 and subsequent grievances in
May 1979, Blue received an aberrational appraisal by Sgt. Vin
cent, which was reviewed by Col. Paquette. App. 2669-71,
2941-43. Blue received no A’s, two B ’s, eleven C ’s, five D ’s and
two N’s and an overall rating of “good all around,” the third
lowest rating. Blue signed the appraisal under protest. App. 2671.
This appraisal earned Blue’s application for MPA 303-79 the
low score of 5.66 (out of 10) for the appraisal category, and
prevented Blue from being referred for an interview. See App.
* App- 2014-15, Blue (April 19, 1984); see App. 2650. This was the second time
in less than one year that Byrd had improperly failed to credit Blue’s applica
tion with work experience In fact, HQC #3 was the identical criterion that
Blue had been improperly denied under MPA 285-78. App. 2016-17, Blue (April
19, 1984); App. 2984. Under MPA 285-78, Blue was initially found to lack
HQC #3. App. 2989-90. After she complained, Lt. Col. Beasley, an oral surgeon
and OIC at Fort Bragg, reviewed Blue’s personnel file and corrected Byrd’s
error. App. 2993-94. Beasley wrote a memorandum outlining these events,
which was placed in Blue’s OPF. Id. Byrd acknowledged Beasley’s memoran
dum and her error in a corresponding memorandum. App. 2995. The rating
and ranking panel for MPA 285-78 reconvened, Blue was re-rated, found best
qualified, referred and interviewed for the position, for which a white woman
was selected. App. 2996-97.
37
2709. She missed the cut-off by 1.5 points on a scale of 100. All
but one of the “best qualified” applicants for MPA 303-79 re
ceived a 10 for appraisals (the other was a 9.36). App. 2713, 2718,
2720, 2722, 2783, 2785.
Blue established a prim a facie case in connection with her
discriminatorily appraisal claim.50 She was rated by officials
who lacked knowledge of her performance, who had been put
on advance notice about “certain” employees at Fort Bragg, and
who never again served at Fort Bragg in supervisory capacities;
she received a very low supervisory' appraisal, considerably lower
than prior appraisals, and lower than a comparable white
employee who had an erratic attendance record; and this 1979
appraisal prevented Blue from effectively competing for MPA
303-79, as well as for three other applications for promotions
in 1979 and 1980. See infra pp. 41-43.
The lower court’s refusal to infer that Blue was appraised dif
ferently than non-minority employees was contrary to the
evidence, which reflected a dramatic change in Blue’s marks
from 1978 to 1979. 679 F. Supp. at 1293. Vincent and Paquette
reviewed Blue’s performance in December 1979 although they
had only supervised Blue for a short period of time. App. 2320,
Jones (April 25, 1984). After Blue filed a complaint about the
1979 review, as well as other incidents where she had been
disciplined by Vincent, Vincent and Paquette were transferred
from DC-6 and neither served in any further supervisory posi
tions at Fort Bragg. App. 2511, Blue (Sept. 4,1984); App. 2582,
Morgan (Sept. 4, 1984).
There was also evidence that Blue was reviewed differently
from other dental assistants. Paquette called an informal
“ “Title VII is violated when a supervisor, acting in his official capacity,
deliberately places an inaccurate, discriminatory performance evaluation in
to an employee’s personnel file. . . . If the discriminatorily low evaluation
reduces plaintiffs overall point rating and prejudices her with respect to an
opportunity for promotion, it fatally and invidiously infects the promotion
process at issue.” 679 F. Supp. at 1292 (citations omitted).
38
panel of the DC-6 dentists to contribute to Blue’s appraisal.
This panel received no instructions on how to appraise her
performance. In fact, Vincent testified that they didn’t assess
Blue’s performance based on objective criteria — instead it was
a matter of “personal opinion.” App. 2472-77, Vincent (Aug.
29,1984). There was no evidence that any other applicant was
so treated.
In addition, Sgt. Wayne Jones, a frequent NCOIC of DC-6
and the assistant NCO IC at the time of the appraisal, disagreed
with the review. He had informed the EEO counselor who was
investigating Blue’s complaint in connection with this appraisal
that he disagreed with and would have rated Blue higher (very
possibly would have given her A’s) in three specific areas,
including accepting responsibility for assigned work. App.
2321-23, Jones (April 25, 1984); App. 2325-28, Jones (Aug. 27,
1984).51
A white dental assistant, Ann Randall, received a much higher
review despite her record of sporadic attendance at DC-6. Dur
ing the 1979 appraisal period, Randall had missed forty-five of
sixty days, and Randall acknowledged that she missed approx
imately fifty days in one year. App. 2150, Ballew (April 23, 1984);
S1 The court noted that Jones testified at trial that he would have also rated
Blue lower in certain criteria. 679 F. Supp. at 1268. In an appraisal or “justifica
tion” that Jones provided for Blue’s application for MPA 67-83, however, he
wrote:
Ms. Blue is very knowledgeable of the materials and instruments
used in surgery and surgical procedures. Ms. Blue has worked in
surgery during 1977 through 1978 as the permanent surgery assis
tant for DC #6. During this time Ms. Blue received letters of com
mendation and letters of appreciation for her surgery skills and
knowledge which enabled the doctor to perform all surgery pro
cedures with ease. Ms. Blue’s performance as a surgery assistant
is truly commendable and I would recommend her for any job
as a surgery assistant.
App. 3340 (emphasis added).
39
App. 2439, Randall (Aug. 29, 1984). The manner in which Blue
was reviewed and its harmful consequences thus presented a
prima facie case of discriminatory appraisal.52
C. Blue Could Present a Prima Facie Case on Her
Untried Claims
Once the claims that were withdrawn with court permission
and claims that the lower court found were not frivolous are
eliminated, the following untried claims remain: MPA 67-83;
the effect of the 1979 discriminatory appraisal on MPAs 440-80,
274-79, and 277-79; and discriminatory discipline. Because these
background claims were intended to be proved in Phase II, Blue
did not have the anticipated opportunity to prove them. Nor
were sanctions proper as to 440-80, 274-79 or 277-79 because
the Army failed to move for them. Nevertheless, the documents
submitted with the pretrial order and evidence on the tried
claims establishes that these claims presented prim a facie cases
of discrimination.
1. MPA 67-83 (Dental Assistant, Oral
Surgery, GS-5)
Blue applied, was qualified and “best qualified,” and a white
employee was selected. App. 3331, 3346, 3352. The lower court
itself recognized that Blue proved these elements, which establish
a prima facie case. 679 F. Supp. at 1322 n.184.
There is other evidence of discrimination. Blue again had dif
ficulty in receiving proper credit for her experience. Originally
the rating and ranking panel determined that Blue did not meet
one of the criteria, KSA #3 (under a new rating system the
qualification criteria were termed KSA, instead of HQC). KSA
§3 required: “ability to schedule patients for treatment to in
clude maintaining patient records and daily treatment logs.”
52 In addition, Blue could prove a prima facie case for MPA 303-79 under a
disparate impact theory because the 85% Rule prevented her referral. See
supra pp. 33-36.
40
App. 3321. Approximately one month later, Blue learned that
the CPO had determined that there was a procedural error, her
application was accepted, and she would be referred for an in
terview. App. 3352. Again, Blue was not selected, and the
selectee was white. App. 2584-86, Blue (April 9. 1985); App.
3331.
The court held that since the rating and ranking panel had
revised the evaluation of all applicants, including Blue, the audit
and revision of scores presents no proof of discriminatory con
duct towards Blue. 679 F. Supp. at 1321. The Army’s treatment
of Blue in connection with MPA 67-83, however, was part of
a continuing pattern of “error” that occurred each time Blue
applied for a position. The announcement was for the same posi
tion as those announced under MPAs 285-78 and 303-79, and
in all three promotions the defendants’ officials determined that
it was necessary to audit the rating and ranking panels and
consequently revised Blue’s score. Blue’s experience applying for
these prior positions provides additional evidence to buttress her
prima facie showing.
2. The 1979 Discriminatory Appraisal Adversely
Affected Blue’s Chances for Other Promotions
The 1979 appraisal remained in Blue’s OPF and prevented
her from being referred for promotion under MPAs 440-80,
274-79, and 277-79, as follows:
a. MPA 440-80 (Dental Assistant, Prostho-
dontic Specialty, GS-5)
Blue applied, was qualified and met the highly qualifying
criterion; but she was not referred for an interview.53 The low
1979 appraisal, however, prevented Blue from being within 85 %
53 Blue’s experience, as listed in her official personnel file, as well as her specific
qualification statements, indisputably demonstrated that Blue possessed suf
ficient experience for this position. E.g., App. 2832-41. Furthermore, Blue had
worked approximately eight months with a prosthodontist at DC-6. App. 2836.
41
of the top score, best qualified and referred for an interview.
The selectee was white. See App. 2802. The cut-off score for
referrals for MPA 440-80 was 73.601. App. 3273, 3275-77. If Blue
had received the average of the supervisory appraisals, instead
of 5.66, she would have scored within the 85 % R ule. Thus, Blue
could have presented a prima facie case that her 1979 appraisal
affected her promotion to MPA 440-80.
b. MPA 274-79 (Dental Assistant, Periodontal
Specialty, GS-5)
Blue applied, was qualified and highly qualified for the posi
tion, but she was not selected and the selectees were white App.
3190-94. The appraisal score of 5.66 again played a significant
role in preventing Blue from being considered for this promo
tion. App. 3198-3200. Five of the six applicants who were within
the “best qualified” category received scores of ten in the ap
praisal category, the sixth received a 9.48. App. 3208, 3212, 3216,
3220, 3224, 3228. Had Blue received only the average appraisal
rating of the “best qualified” applicants, she would have scored
within 85 % of the highest applicant and been referred for an
interview. The cut-off score for referrals was 73.17 (85% of 86).
App. 3206-08. Blue, even with her 5.66 appraisal score, receiv
ed a total score of 72.426. App. 3200. Therefore, the 1979 ap
praisal again precluded Blue’s promotion chances.
c. MPA 277-79 (Dental Assistant, Prosthodon-
tic Specialty, GS-5)
Blue applied, was qualified, and highly qualified. App.
3127-29, 3184. As a result of Blue’s low supervisory appraisal,
however, she was not rated “best qualified,” and thus was not
referred for an interview. See App. 3132-35. Two whites and one
black were selected for the position.*4 App. 3184. As with the
two previous MPAs, Blue’s 1979 appraisal, which provided Blue’s
54 A plaintiff can establish a prima facie case of discrimination even if black
employees receive the promotion and even if she is not rated “best qualified.”
See supra pp. 22, 25.
42
promotion applications with the score of 5.66, effectively
prevented her from receiving this promotion.55 App. 3136-38,
3140-42, 3144-46, 3148-50, 3152-54, 3156-58, 3160-62, 3164-66,
3168-70, 3172-74, 3176-78, 3180-82.
3. Blue’s Retaliatory Discipline Claim
By October 1978, Blue had received five years of good ap
praisals. At that time, Blue and a co-worker, Geraldine Ballew,
complained to their union about working conditions. App. 2693.
Blue also filed a grievance in connection with her October 20,
1978 annual appraisal from Col. Cressler, Officer-In-Charge of
DC-6. App. 2117, Blue (April 20, 1984); see App. 2946-47.56
Thereafter, a pattern of retaliatory treatment, including
discipline, ensued:
• On October 30, 1978, Blue was informed that she
could no longer work in oral surgery because DC-6
was starting a new policy of rotating the dental
assistants through the different departments. Until
Cressler left DC-6, however, Blue was the only den
tal assistant who was required to rotate App. 2135-38,
Blue (April 23, 1984).
• On October 31, 1978, Cressler, in response to Ballew’s
and Blue’s union visit, announced in a staff meeting
that he “would crucify anyone that ever went to the
union.” 679 F. Supp. at 1251; App. 2147-49 (April 23,
1984); App. 2490, Roach (Aug. 31, 1984); App. 2693.57
5! To the extent that any of these promotions were adversely affected by the
85 % Rule, they present prima facie disparate impact claims as well. See supra
pp. 33-36.
“ Blue also went to the union to complain about Cressler’s statement. 679
F. Supp. at 1251. There was evidence that at this time the union sometimes
represented Fort Bragg’s claimants with race discrimination complaints. See
Dkt. 325 at 22; Plaintiffs Ex. 3f.
” The lower court determined that Cressler’s behavior was not discriminatory
because Blue was not intimidated. 679 F. Supp. at 1251. Title VII, however,
does not require proof of intimidation.
43
• On February 22, 1979, Blue was issued a proposed
letter of reprimand for allegedly refusing to obey
N CO IC Sgt. Ramos’ order to assist Dr. Lamb. App.
2687. (Dr. Lam b’s letter of commendation of Blue is
listed at n.37). Ramos disciplined Blue even though
he knew that Blue had, on her own initiative, offered
the doctor assistance that the doctor had declined.
App. 2511-14, Blue (Sept. 4, 1984). In March 1979,
after Blue filed a grievance, the OIC downgraded
Ramos’ proposed reprimand to a counseling state
ment, which was entered into Blue’s employee record.
App. 2697. After Blue followed up with a Step 2
Grievance on June 4, 1979, the counseling statement
was expunged. App. 2692.
• In December 1979, Blue received a very low super
visory appraisal from N CO IC Sgt. Vincent, approv
ed by OIC Col. Paquette, who had been her super
visors for at most six months and who had been
forewarned by other management officials that “cer
tain employees” at DC-6 were troublemakers. App.
2669; App. 2462, 2481-82, Vincent (Aug. 29, 1984).
Blue filed a complaint in connection with this ap
praisal and in 1983 (after it had already impeded
several promotion applications) it was removed from
her record. App. 1994, Blue (April 19, 1984).
• Blue was disciplined for tardiness and parking viola
tions, App. 2119-22, Blue (April 23, 1984); and for
leaving her work station to assist another patient, App.
2519-22 (Sept. 4, 1984); App. 3363. Again, after Blue
filed a grievance, these entries were deleted. Com
pare App. 3359 with App. 2627; see App. 3363.
• Blue was disciplined for talking on the intercom in
a playful manner and talking during a meeting, App.
2699-2701. The Army rescinded its discipline for the
intercom incident after Blue filed a grievance. App.
2689. With respect to the meeting incident, again,
more senior officials stepped in and rebuffed Blue’s
44
supervisor’s discipline attempt after Blue filed a com
plaint. App. 2698.58
• DENTAC management officials had discussed Blue,
were well aware of her complaints, labeled her a dif
ficult employee, and consequently tainted all of Blue’s
subsequent contacts with DENTAC management.
App. 2440-42, Jacobson (Aug. 29, 1984); App. 2462,
2481-82, Vincent (Aug. 29, 1984).
Blue was a well-regarded employee for the first five years she
was at Fort Bragg. In 1978, she complained to union officials
about her treatment and soon thereafter experienced a profound
change in discipline and in her employment opportunities. That
the lower court chose not to draw an inference of discrimina
tion from these circumstances does not make these claims
frivolous.
Thus, Blue’s claims were neither improperly dropped nor
frivolous. The district court’s analysis was completely erroneous.
in.
The District Court Erred as a Matter of Law in
Imposing Sanctions Under Rule 11
The district court erred as a matter of law in sanctioning the
attorneys under Rule JJ because the Harris and Blue claims were
not frivolous. The court also erred in viewing the claims in hind
sight, penalizing the attorneys for failing to foresee adverse rul
ings, especially as to witness credibility. The actions of the Army
and the conduct of the lower court also preclude a finding of
frivolousness.
M That some of Blue’s supervisors were black does not belie her claims of
discrimination. See Castaneda v. Partida, 430 U.S. 482, 499 (1977).
45
Courts should impose sanctions under Rule 11 only in
“exceptional circumstances,” where a claim is patently fri
volous.59 In this circuit, the test of frivolousness is whether
objectively the plaintiff had “a glimmer of a chance of pre
vailing.”60 “ [A]ny and all doubts [about the validity of a
Rule 11 certification] must be resolved in favor of the signer.”
Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 254
(2d Cir. 1985).
Special care must be exercised in applying these standards in
civil rights cases, where plaintiffs are the chosen instruments
of a national policy to eradicate prejudice E.g., Christiansburg
Garment Co. v. EEOC, 434 U.S. 412 (1978). Indiscriminate im
position of sanctions against these plaintiffs risks discouraging
use of a congressionally favored enforcement scheme.61 This
Court has recognized the chilling effect of awarding attorneys’
58 Gaiardo v. Ethyl Corp., 835 F.2d 479, 483 (3d Cir. 1987); see Oliveri v.
Thompson, 803 F.2d 1265, 1275 (2d Cir. 1986) (“ [R]ule 11 is violated only
when it is ‘patently clear that a claim has absolutely no chance of success.’”),
cert, denied, 480 U.S. 918 (1987); Greenberg v. Sola, 822 F.2d 882, 887-89
(9th Cir. 1987) (per curiam) (a pleading is not “frivolous unless some clear
authority or a litigant’s own clear admission erases the factual underpinning
from some essential element”).
* Hoover Universal, Inc. v. Brockway Imco, Inc., 809 F.2d 1039, 1044
(4th Cir. 1987); see Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989) (a
complaint is not frivolous under section 1915 if it is has an arguable basis
in either law or fact; a factual allegation is frivolous if “fan cifu l’) (emphasis
added).
61 See Hamer v. County of Lake, 819 F.2d 1362, 1367 (7th Cir. 1987); Woodrum
v. Woodward County, 866 F.2d 1121, 1127-28 (9th Cir. 1989); Jones v. Con
tinental Corp., 789 F.2d 1225, 1232 (6th Cir. 1986). The lower court turned
this rationale on its head, stating that claims of racial discrimination should
be more carefully scrutinized because of their “enormously stigmatizing ef
fect.” 679 F. Supp. at 1220; see id. at 1379 (“serious stigmatizing charges”).
The court had curious notions about discrimination. See id. at 1220 (civil
disorders in 1960’s and 1970’s were an example of blacks discriminating against
whites); id. at 1347 (“ greatest deterrent to racism . . . is excellence in
performance”).
46
fees to prevailing defendants and the “broad remedial purpose
of Title VII,” holding that fees should be awarded “sparingly.”62
Counsels’ efforts to gather and analyze the relevant data were
Herculean.63 The numerous and extensive briefs filed show a
continuing analysis of the bases for the lawsuit. The district
court, in hindsight, decided that counsel should have known that
their analysis was flawed. This conclusion was based on the
court’s faulty legal analysis of the claims.
A. The Evidentiary Record Shows Plaintiffs’
Claims Were Not Frivolous
Substantially all the plaintiffs’ claims could be supported by
a prima facie showing, so they were not frivolous.64 Once a Title
VII plantiff establishes of a prima facie case, the defendant must
articulate a legitimate and non-discriminatory reason for its ac
tion, or the plaintiff is entitled to judgment as a matter of law.
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254
(1981). The mere statement of a justification by a defendant,
however, does not support forcing a plaintiff to abandon claims
under threat of sanction. The trier of fact must decide whether
the reason in fact motivated the conduct. Jones v. Continental
“ Arnold v. Burger King Corp., 719 F.2d 63, 65 (4th Cir,), cert, denied, 469
U.S. 826 (1984). The Rule 11 and Christiansburg standards of frivolousness
are equivalent. Zaldivar v. City of Los Angeles, 780 F.2d 823, 831 (9th Cir.
1986); see Nesmith v. Martin Marietta Aerospace, 833 F.2d 1489, 1491 (11th
Cir. 1987); Bass v. Southwestern Bell Tel., 817 F.2d 44, 45-47 (8th Cir. 1987).
“ 679 F. Supp. at 1379 n. 267 (“plaintiffs’ counsel expended a great deal of
effort at securing defendant’s documents and files”); id. at 1229 (“an extraor
dinary amount of discovery was exchanged,” most of it sought by the plain
tiffs); id. at 1222 (“case represents an expenditure of an extraordinary amount
of time and resources for all concerned”).
84 EEOC v. Tarrant Distribs., Inc., 750 F.2d 1249,1251 (5th Cir. 1984); LeBeau
v. Libbey-Owens-Ford Co., 799 F.2d 1152 (7th Cir. 1986); see Glymph v. Spar
tanburg Gen. Hasp., 783 F.2d 476, 479-80 (4th Cir. 1986); Wrenn v. Gould, 808
F.2d 493, 504-05 (6th Cir. 1987), cert, denied, 108 S. Ct. 1032 (1988); cf. Intro-
caso v. Cunningham Corp., 857 F.2d 965, 967-68 (4th Cir. 1988) (affirming
sanction where a defense was “readily apparent to plaintiff from the outset of
the litigation” based on prior administrative proceedings and Supreme Court
precedent).
47
Corp., 789 F.2d 1225, 1233 (6th Cir. 1986); Obin v. District No.
9, Int’l Ass’n of Machinists, 651 F.2d 574, 587 (8th Cir. 1981);
White v. South Park Indep. School Dist., 693 F.2d 1163, 1169
(5th Cir. 1982). A plaintiff is entitled to proceed even though
it might appear that the defense is strong or even “airtight.”
Williams v. Giant Eagle Markets, 57 Empl. Prac. Dec. (CCH)
1 39,290 (3d Cir. Aug. 28, 1989); Mihalik v. Pro Arts, Inc., 851
F.2d 790, 794 (6th Cir. 1988). In any event, plaintiffs proof need
not even suffice to establish a prima facie claim to be found non-
frivolous.65
Appellate courts have interpreted the definition of frivolous
ness very narrowly. For example, in Mitchell v. Office of Los
Angeles County Superintendent of Schools, 805 F.2d 844 (9th
Cir. 1986), cert, denied, 484 U.S. 858 (1987), the district court
had granted a dismissal after the close of plaintiff’s case. In over
thirty cases where plaintiffs applications had been rejected, the
selectee was better qualified. The committees that had reviewed
applications were not even aware of plaintiffs race, and the
defendant’s employment of blacks compared favorably with that
of the relevant labor market. Id. at 846. The court of appeals
nevertheless found the action was not frivolous, observing that
there “is a significant difference between the bringing of cases
with no foundation in law or facts at the outset and the failure
to present evidence sufficient to justify relief at trial.” Id
65 EEO C v. Pet, Inc., 719 F.2d 383 (11th Cir. 1983) (per curiam); Plemer v.
Parsons-Gilbane, 713 F.2d 1127, 1141 (5th Cir. 1983); EEOC v. Fruehauf Corp.,
609 F.2d 434 (10th Cir. 1979); Bowers v. Kraft Foods Corp., 606 F.2d 816,
819 (8th Cir. 1979); see Evans v. Davie Truckers, Inc., 769 F.2d 1012, 1014
(4th Cir. 1985) (no fees awarded to prevailing defendant even though plain
tiff had failed to establish a prima facie case).
« See Wrenn v. Gould, 808 F.2d at 503-04 (no sanction even though selectee
was black); White v. South Park Indep. School Dist., 693 F.2d at 1169 (same);
Herbert v. Monsanto Co., 682 F.2d 1111, 1126 n.18 (5th Cir. 1982) (same); see
also Vandenplas v. City of Muskego, 797 F.2d 425, 428-29 (7th Cir. 1986) (claim
found non-frivolous even though plaintiffs “failed to produce any evidence
or affidavits showing they had been treated in a discriminatory manner”);
Montgomery v. Yellow Freight Sys., 671 F.2d 412, 414 (10th Cir. 1982) (record
must be devoid of any evidence of discrimination).
48
B. The District Court Erred In Failing to Evaluate the
Pleadings and Pretrial Orders as of the Time They
Were Signed
The perspective from which the filings in a lawsuit is judged
is critical. The Supreme Court in Christiansburg specifically
disapproved of sanctioning plaintiffs based on hindsight:
[I]t is important that a district court resist the
understandable temptation to engage in post hoc
reasoning by concluding that, because a plaintiff did
not ultimately prevail, his action must have been
unreasonable or without foundation. This kind of
hindsight logic would discourage all but the most air
tight claims, for seldom can a prospective plaintiff be
sure of ultimate success. No matter how honest one’s
belief that he has been the victim of discrimination,
no matter how meritorious one’s claim may appear
at the outset, the course of litigation is rarely predic
table. Decisive facts may not emerge until discovery
or trial. The law may change or clarify in the midst
of the litigation.
434 U.S. at 421-22. The Rule 11 advisory committee similarly
cautions that the “rule is not intended to chill an attorney’s en
thusiasm or creativity in pursuing factual or legal theories. The
court is expected to avoid using the wisdom of hindsight and
should test the signer’s conduct by inquiring what was reasonable
at the time the pleading, motion or other paper is signed.”67
The lower court evaluated plaintiffs’ claims in hindsight. In
nearly 200 pages of opinion, the court devoted only two
paragraphs to speculating about what counsel “should have
known” when it filed the complaint and pretrial orders. 679
'7 Fed. R. Civ. P. 11 advisory committee note (emphasis added); see Forrest
Creek Assocs., Ltd. v. McLean Sav. ir Loan Assn, 831 F.2d 1238, 1244 (4th
Cir. 1987) (“[T]hat the plaintiffs did not prevail at trial is irrelevant. Rule 11
was never meant to impose a penalty upon every plaintiff whose case is dis
missed.”); cf. Neitzke v. Williams, 109 S. Ct. 1827, 1833-34 (1989) (an action
may be dismissed for failure to state a claim and yet not be so “frivolous” or
defective that it should never have been brought).
49
F. Supp. at 1387-88 (claims “apparently pursued without ob
jective thought”). The court’s conclusions as to sanctions are “no
more than reiteration of its ultimate conclusions on the merits,”
which does not satisfy Christiansburg. Jones v. Texas Tech. Univ.,
656 F.2d 1137, 1146 (5th Cir. 1981). It failed to distinguish its
post-trial findings from what a reasonable view of the case would
have been when the complaints and pre-trial orders were filed.
See LeBeau v. Libbey-Owens-Ford Co., 799 F.2d at 1160 (“too
much reliance is placed on the facts as found at trial to support
a finding that the suit should not have been brought”).68
The lower court found that counsel were guilty of pursuing
a case with the hope that the court would reject the defendant’s
evidence, accept the plaintiffs favorable evidence, find the plain
tiffs credible, and draw inferences of discrimination. 679 F. Supp.
at 1380. This is not a Rule 11 violation: it is a prescription for
trying any Title VII case. “Subjective and nearly intuitive fact
finding is necessary in many cases, not least in reconstructing
the ’truth’ in discrimination cases, and a plaintiff is entitled to
hope for the best without a substantial amount of objective proof
of discrimination.” Pickens v. Childrens Mercy Hosp., 124 F.R.D.
209, 211 (W.D. Mo. 1989).
1. The District Court's Conclusions Improperly Rested
on Hindsight Determinations of Witness Credibility
The lower court’s conclusions of frivolousness were premised
on its belief that the plaintiffs were not credible witnesses.69 For
68 The Rule 11 sanctions were also premised on an erroneous perception of
the rule’s scope 679 F. Supp. at 1386-87. The court held, contrary to the vast
weight of authority, that Rule 11 imposes a continuing obligation to update
or revise previously filed pleadings. Oliveri v. Thompson, 803 F.2d 1265 (2d
Cir. 1986), cert, denied, 480 U.S. 918 (1987); Gaiardo v. Ethyl Corp, 835 F.2d
at 484; Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866 (5th Cir. 1988) (en
banc); Pantry Pride Queen Foods, Inc. v. Lifschultz Fast Freight, Inc., 809
F.2d 451 (7th Cir. 1987); Corporation of the Presiding Bishop v. Associated
Contractors, Inc., 877 F.2d 938, 943 (11th Cir. 1989); see Kirby v. Allegheny
Beverage Corp., 811 F.2d 253, 257 (4th Cir. 1987) (focal point under Rule 11
is when the document was signed).
88 E.g., 679 F. Supp. at 1251, 1252, 1254, 1255, 1256, 1257, 1265, 1266, 1268,
1277, 1278, 1348, 1359. The opinion is riddled with observations that plain
tiffs presented “no credible evidence” E.g., id. at 1348 (emphasis added).
50
example, based on the testimony of Army employees, enlisted
personnel and officers, the lower court found that Blue was un
professional and discourteous, among other things. 679 F. Supp.
at 1250. It obviously was not frivolous for attorneys to believe
that these assertions presented litigable issues of fact: documen
tary evidence showed satisfactory annual performance ratings
and five letters of commendation (before Blue’s EEO C claims
were filed).70
Other factual issues involved “swearing matches,” where plain
tiffs and defendant offered differing versions of events not ob
jectively verifiable.71 Although the court resolved nearly all of
these contests against the plaintiffs, it found some of the plain
tiffs’ witnesses entirely credible, 679 F. Supp. at 1224 n.7, and
questioned the objectivity or veracity of some of defendant’s
witnesses.72 The court never explained, though, how counsel was
supposed to discern which witnesses the court would ultimate
ly choose to believe. Rule 11 requires no such prediction.
Sanctioning the failure to foresee credibility determinations
not only violates the principle that claims are not to be judged
in hindsight, but misperceives the role of the attorney. Generally,
m 679 F. Supp. at 1249; see also Rossman v. State Farm Mut. Auto. Ins. Co.,
832 F.2d 282, 290 (4th Cir. 1987) (vigorous pursuit of questions of fact that
are “hotly disputed” is not grounds for sanction). While the lower court found
that plaintiffs’ supposed personality problems justified the defendant’s con
duct, other courts have found that this label can can be an “earmark of racial
tension.” Pickens v. Children’s Mercy Hosp., 124 F.R.D. at 211 n.2.
71 E.g„ 679 F. Supp. at 1250, 1252, 1255, 1256, 1257, 1265, 1265-66, 1268,
1277,1319 n.180, 1348, 1359 n.246, 1361-62. Plaintiff s proposed findings and
conclusions submitted in the Blue case show exactly what a reasonable non
hindsight view of claims was and how the credibility determinations were
crucial to the case. Dkt. 316.
n E.g., 679 F. Supp. at 1255 (Vincent); id. at 1256 (Soehren); id. at 1265-66 n.92
(Lane); see also App. 688 (describing witnesses for both sides as “evasive”);
Dkt. 264 at 8 (magistrate found certain defense witnesses incredible, their
testimony being “patently inconsistent” with the evidence). The court’s
credibility determinations were not always internally consistent. Compare 679
F. Supp. at 1268 (crediting Jones over Carter) with id. at 1224 n.7 (Carter
was “entirely credible”).
51
it is improper for an attorney to “adopt the role of the judge
or jury to determine the facts.” Nix v. Whiteside, 475 U.S. 157,
189 (1986) (Blackmun, J., concurring) (citation omitted). The
lower court’s action thus impermissibly “blurfs] the roles of at
torneys and finders of fact.” Greenberg v. Sala, 822 F.2d at
886-87; cj. Celotex Corp. v. Catrett, A ll U.S. 317, 327 (1986)
(courts forbidden to make credibility determinations on sum
mary judgment).
Reviewing courts have thus consistently held in similar con
texts that attorneys should not be subject to sanctions merely
because the trial court has found witnesses incredible. In Runyon
v. McCrary, 427 U.S. 160 (1976), plaintiffs claimed that the de
fendants had litigated in bad faith, citing conflicts in testimony
that the district court had resolved against the defendants, and
the district court’s characterization of certain defendants’
testimony as “ unbelievable.” Id. at 183. Rejecting plaintiffs’
claims, and affirming the Fourth Circuit’s holding, the Court
held: “Faults in perception or memory often account for dif
fering trial testimony, but that has not yet been thought a suf
ficient ground to shift the expense of litigation.” Id. (citation
omitted); see Oliveri v. Thompson, 803 F.2d at 1277-78 (“Sec
tion 1927 was not intended to require an attorney to pass judg
ment on the credibility of his client on pain of a monetary sanc
tion in the form of paying adversaries’ attorneys’ fees should he
evaluate that credibility contrary to the district court’s view.”).
The same principle applies under Rule 11.73
In Glymph v. Spartanburg General Hospital, 783 F.2d 476
(4th Cir. 1986), this Court reversed the imposition of sanctions
against an employment discrimination plaintiff. The Court held:
73 District No. 8, Int’l Ass’n of Machinists v. Clearing, 807 F.2d 618, 622 (7th
Cir. 1986) (attorney does not violate Rule 11 by relying on the representations
of a client, even where a court ultimately refuses to credit those representa
tions at trial); see Little v. Southern Elec. Steel Co., 595 F.2d 998, 1005 (5th
Cir. 1979) (award to defendant under Christiansburg reversed despite district
court’s conclusion that “plaintiff s testimony was so inconsistent and contradic
tor}’ throughout as to suggest strongly the he was lying under oath”).
52
[Plaintiff s] case depended almost wholly on her oral
testimony that she was forced to resign, and while it
is true that the hospital presented a strong defense that
she voluntarily resigned, which was accepted by the
district court, we do not think that such cases should
subject unsuccessful plaintiffs to the award of at
torneys’ fees under Christiansburg.. . .
Id. at 480; see Sullivan v. School Bd. of Pinellas County, 773
F.2d 1182, 1190 (5th Cir. 1985) (claim found not frivolous even
though plain tiff s refutation of defendants’ complaints against
her consisted primarily of her own testimony).74
2. The District Court Erroneously Relied on Hind
sight in Interpreting the Law and Applied the
Wrong Law
Litigants should not be penalized for urging new or different
legal propositions, especially when the law in the substantive area
is unsettled, as it surely has been under Title VII.75 In this litiga
tion the status of the law was always uncertain. The court itself
conceded as much. Tr. at 142 (Aug. 22, 1983). While the court
later suggested that the lack of merit to their claims should have
been readily visible to the plaintiffs, it justified a fee award to
the Army with this observation:
The litigation presented continually challenges [sic]
issues of both fact and law. The record and this
opinion reveal its complexity and magnitude. . . . The
7< A litigant is entitled to her day in court even where the record reveals prior
inconsistent statements. See Torres v. County of Oakland, 758 F.2d 147 (6th
Cir. 1985) (sanctions inappropriate even though the plaintiff had admitted
during her deposition that she did not feel she was discriminated against in
the interview process, but then contradicted this testimony at trial); EEOC
v- Pet, Inc., 719 F.2d at 386 n.5 (claim is not frivolous merely because affidavits
of plaintiffs were of questionable accuracy and conflicted with subsequent
deposition testimony).
" Tarter v. Raybuck, 742 F.2d 977, 987 (6th Cir. 1984), cert, denied, 470 U.S.
1051 (1985); Dooley v. Reiss, 736 F.2d 1392, 1394 (9th Cir.), cert, denied, 469
U.S. 1038 (1984); Hudson v. Moore Business Forms, Inc., 836 F.2d 1156,1160-61
(9th Cir. 1987).
53
sheer enormity of the task of trying a case such as this
is transparent. In a legal sense, many aspects of the
law governing Title VII actions was and is [sic] in flux.
679 F. Supp. at 1332; see id. at 1223 (Army contended in pretrial
order that there were 112 triable issues of law). The court’s own
opinion shows the fluidity of Title VII principles. For example,
between the time of its class certification opinion and the final
opinion, it reversed its view that an excessive subjectivity claim
could be proved only under a disparate treatment theory. 679
F. Supp. at 1228 n.9. It acknowledged initial misreadings of the
law in other respects. Id. at 1295 n.43.
The lower court did not interpret these uncertainties, as re
quired by Rule 11 and Christiansburg, to give the attorneys the
benefit of the doubt on uncertain legal issues. Instead, it retroac
tively applied unfavorable precedents to justify sanctions.76 This
is a reversible error of law.
The danger in the district court’s method was made apparent
when the Supreme Court decided Patterson v. McLean, 109 S.
Ct. 2363 (1989), which completely vindicates the contentions
below concerning the promotion claims. Patterson shows the
lower court was wrong in interpreting the fourth prong of the
required showing in a promotion case, and in concluding that
plaintiffs claims were frivolous because they failed to prove that
they were best qualified. This change in the law completely
undermines the district court’s ruling that the claims were
frivolous. See EEO C v. St. Louis — S.F. Ry., 743 F.2d 739, 744
(10th Cir. 1984) (action was not frivolous where state of law was
originally not settled and had since been settled in favor of plain
tiffs position).
3. The District Court Erred in Assuming that Drop
ping Claims Proves That They Are Frivolous
In another example of improper hindsight, the lower court
assumed that dropping a claim proves the claim is frivolous. 679
76 The most prominent example of this was its application of the en banc deci
sion in Holmes. 679 F. Supp. at 1224, 1279,1288, 1291,1297,1322 n.184,1349.
54
F. Supp. at 1347. This reasoning is fallacious. At most, drop
ping a claim may reflect a party’s belief that she will not prevail,
and failure to prevail may not be equated with frivolousness.
Other courts have rejected the inference relied upon by the
lower court. “The abandonment of a claim does not show that
it is frivolous.” Afram Export Corp. v. Metallurgiki Halyps, 772
F.2d 1358, 1372 (7th Cir. 1985); see Anthony v. Marion County
Gen. Hosp., 617 F.2d 1164, 1170 (5th Cir. 1980). Drawing such
an inference is not only inaccurate, but an unwise judicial policy:
“[I]t would be a serious mistake to adopt a rule that gave par
ties an incentive to litigate claims merely to avert an award of
attorney’s fees.’’ Afram, 772 F.2d at 1372. “Courts benefit when
counsel reduce the issues in dispute by objectively reappraising
the evolving strengths of their positions throughout the course
of litigation. Rule 11 was not intended to inhibit such activity
by permitting it to be characterized by an adversary as an ad
mission of liability.” Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d
90, 95-96 (3d Cir. 1988); see Tarrant Distribs., 750 F.2d at 1251.
Harris’ case also disproves the lower court’s premise. She
dropped two claims that the lower court itself found were not
frivolous. The court never addressed this serious contradiction
in its reasoning.77
C. The Conduct of The Army and the District Court
Throughout the Litigation Shows That Plaintiffs’
Claims Were Not Frivolous
The entire course of the litigation also belies any finding of
frivolousness. After the complaints were filed, the Army substan
tially changed its promotion policies. Among other things, it
abandoned the 85 % and Ten Referral Rules, and reduced the
influence of subjective determinations in the promotion process.
In some cases, such a sequence of events has entitled the plaintiff
77 Harris’ case shows another dimension to the hindsight-credibility error. The
court’s findings as to Harris’ credibility flowed from her testimony regarding
why she dropped her claims, an event that occurred after the pleadings in
issue were filed.
55
to an award of fees as a prevailing party.78 It surely must suf
fice to show that sanctions are unwarranted.
In its veritable blizzard of pretrial motions, the Army made
no motions on the merits. At trial, it made a motion as to only
one substantive element of Blue’s case , and then only after the
close of plaintiff s evidence. “One might well wonder how a case
could be so frivolous as to warrant sanctions if it has sufficient
merit to get to trial.” 79 Moreover, if the claims were truly
frivolous, the Army would not have agreed to pay $75,000 to
settle them. EEO C v. Kimbrough Inv. Co., 703 F.2d 98, 103
(5th Cir. 1983); see Wattleton v. Ladish Co., 520 F. Supp. 1329,
1351 (E.D. Wis. 1981), aff’d sub nom. Wattleton v. International
Bhd. of Boilermakers, 686 F.2d 586 (7th Cir. 1982), cert, denied,
459 U.S. 1208 (1983).
The lower court’s own actions also undercut its post-hoc deter
mination of frivolousness. That it took the court over two years
and hundreds of pages of decisions to return its findings is
anomalous. In Hughes v. Rowe, 449 U.S. 5 (1980), the Supreme
Court held that the detailed consideration given by the district
and appellate courts to dismissing a plaintiff’s claims was itself
proof that the claims were not frivolous. Likewise, in Glymph,
783 F.2d at 479-80, this Court found evidence that a claim was
78 A plaintiff whose case acted as a “catalyst” in motivating the defendant to
provide the primary relief sought is entitled to an attorneys’ fees award. E.g.,
Sullivan v. Pennsylvania Dep’t of Labor ir Indus., 663 F.2d 443 (3d Cir. 1981),
cert, denied, 455 U.S. 1020 (1982); see Disabled in Action v. Mayor oj
Baltimore, 685 F.2d 881 (4th Cir. 1982).
79 National Ass’n of Govt. Employees v. National Fed’n of Fed. Employees,
844 F.2d 216, 223 (5th Cir. 1988) (citation omitted); see Sullivan v. School
Bd. of Pinellas County, 773 F.2d at 1189 (failure by defendant to file a sum
mary judgment motion and the holding of a nine-day trial showed lack of
frivolousness); Hamilton v. Daley, 111 F.2d 1207, 1214 n.7 (7th Cir. 1985) (“In
deed the more time and effort the defendant spends in defending a case . •
the less likely it is that the case was frivolous and that a fee award is appropriate
in the first place.”); EEOC v. Sears, Roebuck <b Co., 114 F.R.D. 615, 632 (N.D.
111. 1987) (court found action was not frivolous, noting that the defendant
had spent “much time and effort in its defense, and [the] court relied heavily
on [defendant’s] evidence in ruling, . . . as [the] court’s reference to [de
fendant’s] evidence throughout its decision demonstrates”).
56
not meritless in the district court’s taking weeks to deliberate
on and decide the case on the merits.80
The description of the litigation in EEOC v. Kenneth Balk
b Associates, 813 F.2d 197, 198 (8th Cir. 1987) (citation omit
ted), largely applies here:
The claim was not so baseless that [defendant] sought
either a pretrial dismissal or summary judgment.
Similarly, [defendant] never moved for a directed ver
dict during the trial, which consumed four days . . . .
Moreover, the district court directed the parties to sub
mit post-trial briefs as well as proposed findings of
fact and conclusions of law before taking the case
under submission. . . . Finally, the district court’s find
ings of fact and conclusions of law revealed that it
based its decision on the resolution of conflicting
evidence and testimony. However unpersuasive the . . .
evidence ultimately proved to be, the evidence pro
vided “some basis” for the . . . claim.
The appellate court reversed the sanction, as this Court should
do here.
Even if this Court decides that some of the claims presented were
frivolous, the sanctions awards should nevertheless be reversed
in their entirety'. See Townsend v. Holman Consulting Corp., 881
F.2d 788, 795 (9th Cir. 1989) (“a pleading which contains a non-
frivolous claim cannot be sanctioned as frivolous under Rule 11
even though other claims in that pleading are frivolous”).81
“ See Pocahontas Supreme Coal Co. v. Bethlehem Steel Corp., 828 F.2d 211,
221 (4th Cir. 1987); see also Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90,
99 (3d Cir. 1988) (“ [I]f there is doubt as to how the district court will rule
on the challenged pleading or motion, the filing of the paper is unlikely to
have violated Rule 11.”).
11 The record contains no basis to allocate sanctions for frivolous versus non-
frivolous claims. The district court's only analysis in this respect is flawed
mathematically. 679 F. Supp. at 1365, 1370 (reducing sanction by 10% bas-
ed on findings that two out of ten claims (20 %) were non-frivolous). The proof
submitted by the Army below also failed to account for expenses on a claim-
by-claim basis. E. g., App. 1086-93.
57
D. The District Court Erred in Awarding the Army Ex
penses for Prosecuting the Sanctions Motions
A substantial portion (nearly $7,000) of the fees awarded the
Army were for the prosecution and trial of the sanctions mo
tions. 679 F. Supp. at 1326, 1365, 1331 n.205. This double sanc
tion (part of it awarded sua sponte) was erroneous as a matter
of law. Fees for the prosecution of sanctions motions cannot be
awarded under Rule 11. Introcaso v. Cunningham Corp,, 857
F.2d 965, 970 (4th Cir. 1988) (disallowing fees for “litigation
activity and associated expenses for defendant’s motion for at
torney’s fees under § 1988 and Rule 11”). Rule 11 authorizes sanc
tions for filing frivolous or vexatious pleadings. There was no
finding below (nor could there have been), that the attorneys’
opposition to the sanctions motions was frivolous or improper.
Nor can the fees be justified as related to the filing of the sub
stantive pleadings for which sanctions were imposed. The drafters
of Rule 11 made no provision for such an award. Cf. Fed. R.
Civ. R 37 (a) (4) (expressly authorizing award of fees in connec
tion with discovery sanction motions). Moreover, this Court has
rejected such a rationale in denying fees on appeals from sanc
tions awards, as long as the appeal itself (even if unsuccessful)
is not frivolous. E.g., Cohen v. Virginia Elec. 6- Power Co., 788
F.2d 247, 249 (4th Cir. 1986); Basch v. Westinghouse Elec. Corp.,
777 F.2d 165, 175 (4th Cir. 1985), cert, denied, 476 U.S. 1108
(1986). Accordingly, the lower court’s award of fees and expenses
for litigating the sanctions motions should be reversed, whether
or not the underlying claims were frivolous.
IV.
The District Court Violated its Local Rules and the Due
Process Clause in Disciplining the Attorneys
The district court ignored its local rules in deciding — more
than two years after conceding the reasonableness of counsel’s
conduct — that Chambers and Sumter should be penalized for
violating the disciplinary rules governing conflicts o f interest.
679 F. Supp. at 1362-64. The court also failed to give the
58
attorneys notice that it was even considering imposing
disciplinary sanctions. As a result of this disregard of the court’s
rules and the due process clause, the disciplinary sanctions im
posed below were erroneous as a matter of law.
A. Chambers and Sumter Did Not Receive Notice That
They Might Be Disciplined
Potential conflicts of interest first arose in August 1983 follow
ing the denial of class certification. Certain intervenors had con
flicting claims because they had sought promotion to the same
job vacancy. Intervenor Beulah Mae Harris had accused in-
tervenor Alicia Chisolm, her former supervisor, of participating
in discriminatory conduct. As the lower court later observed,
conflicts such as these frequently arise in civil rights class ac
tions, and are almost always easily resolved. App. 1217. To
eliminate the conflict, the overlapping claims were promptly
withdrawn and Harris opted not to pursue her discriminatory
appraisal claim in litigation. App. 1192, 1197. Thereafter, the
court entered an order declaring the matter “satisfactorily resolv
ed” as to “all potential conflict of claims among the plaintiffs
and intervenors.” App. 1201; 679 F. Supp. at 1229 n.15.
The problem unexpectedly resurfaced during the sanctions
hearings in 1985, when the court (to the surprise of plaintiffs’
counsel) allowed the Army to examine Harris regarding her 1983
appraisal claim and her belief that Chisolm discriminated
against her.82 There was no indication during the sanctions hear
ings (or at any other time) that the court was considering im
posing penalties based on the disciplinary rules. Counsel were
not asked to justify their conduct, nor was there an opportuni
ty or a reason to do so. To the contrary, when the conflict unex
pectedly reappeared, the court expressed agreement with
counsels’ position:
Counsel reasonably perceived this claim was not in issue during the sanc
tions hearings because it was withdrawn with court approval prior to the
pretrial order and long before Harris dismissed her case App. 1288; see App.
1192; Dkt. 133; cf. 679 F. Supp. at 1322 (denying request for sanctions with
respect to Blue claim dropped with court approval).
59
MS. WRIGHT: Your Honor, our concern is when we
came in on these sanctions hearings, it was our
understanding, as Mr. Lowenberg very well knows,
what the issues were. Early on, there have been
withdrawals of issues involved in a conflict. We did
not anticipate that all these issues were going to be
before the Court, which is why we withdrew from
having those issues in the first place. When we came
into these sanctions and hearings, we did not know
that was going to be an issue or that the defendants
were going to get involved in any issue that had
previously been dropped.
BY TH E COURT: I think you are correct. Once the
issues, whether there are in conflict [sic] are withdrawn
from litigation, at that point in time I doubt that you
foresaw, anyone foresaw that sanctions motions would
be filed, and that you anticipated that you would be
trying claims in which there were no conflicts.
App. 1239-42 (emphasis added). The issue was resolved by ad
journing the examination of Harris and allowing her time to
obtain new counsel. App. 1257. In granting counsel’s motion
to withdraw from the Harris representation, the court gave no
hint that it was considering imposing a disciplinary penalty. App.
1292.
It was not until December 1987 — when the sanctions were
actually imposed — that the issue was raised again. That
“notice,” of course, came too late. An attorney may not be
disciplined without prior notice that the court is considering
the imposition of penalties and without an opportunity to res
pond to the charges.83 The lack of such protections here requires
reversal.
“ Roadway Express, Inc. v. Piper, 447 U.S. 752, 767 (1980); Miranda v.
Southern Pac. Transp. Co., 710 F.2d 516, 522 (9th Cir. 1983). The district court
subsequently reasoned that any deficiency in process was cured by the oppor
tunity to present arguments after the judgment. 123 F.R.D. at 213. The
(Footnote continued)
60
B. The Court Disregarded its Disciplinary Rules
The court also erred in ignoring its own local rules. Failure to
follow the court’s disciplinary rules vitiates the entire disciplinary
finding and requires that it be set aside In re Thalheim, 853 F.2d
383, 386, 388 (5th Cir. 1988); In re Abrams, 521 F.2d 1094,
1104-05 (3d Cir.) (en banc), cert, denied, 423 U.S. 1038 (1975); see
United States v. Stoneberger, 805 F.2d 1391,1393 (9th Cir. 1986).
Rule 2.10 of the district court’s General Rules establishes that
the North Carolina Code of Professional Responsibility governs
attorney conduct. It specifies that “ [t]he disciplinary procedures
of this court shall be on file with the clerk and furnished to
counsel upon request.” E.D.N.C. R. 2.10. Rule 105.01 of the
Rules of Disciplinary Procedure adopted by the court in turn
provides that whenever allegations of misconduct come to the
attention of the court “by complaint or otherwise,” the court
“shall refer the matter for investigation and if warranted the
prosecution” of a disciplinary proceeding.84
The rule requires independent review of all charges of “mis
conduct” which “would warrant discipline,” unless the rules pro
vide specific alternate procedures, as they do for convictions and
sanctions imposed by other courts. E.D.N.C. Disc. R. 101.00,
102.00; see Thalheim, 853 F.2d at 387; Abrams, 521 F.2d at
1104-05 n.8. Rule 104.00 and the court’s opinion make clear that
the charge levelled against Chambers and Sumter falls square
ly within the ambit of those matters that must be referred to
special counsel. See Disc. R. 104.01 (allowing discipline for
misconduct as defined in rules); id. 104.02 (misconduct includes,
availability of a post-judgment motion does not cure the failure to provide
the requisite prior notice and opportunity to be heard. E.g., Tom Growney
Equip., Inc. v. Shelley Irrigation Dev., Inc., 834 F.2d 833, 836-37 (9th Cir.
1987); Patterson v. Coughlin, 761 F.2d 886, 892 (2d Cir. 1985), cert, denied,
474 U.S. 1100 (1986); Fetner v. City of Roanoke, 813 F.2d 1183,1186 (11th Cir.
1987) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 (1982)).
** The Rules of Disciplinary Procedure are not available in any published
reporter or rule book, but have been reproduced in the addendum to this brief
pursuant to Fourth Circuit Rule 28(c).
61
inter alia, violation of Code of Professional Responsibility); 679
F. Supp. at 1363-64; see Carlucci v. Piper Aircraft Corp., 775
F.2d 1440, 1449 (11th Cir. 1985).
The court was thus required to stay its hand until the charges
had been independendy examined and a recommendation had
been made. Thereafter, the rules require that the challenged at
torney be provided with “notice and [an] opportunity to be
heard.” E.D.N.C. Disc. R. 104.01. Moreover, the trial judge was
prohibited from ruling on the issue himself. Id. 105.04. The lower
court ignored these protections and impermissibly assumed the
roles of constable, prosecutor, judge, and jury.
After the fact, the court asserted that it was entitled to
discipline the attorneys pursuant to disciplinary rule 112.00. 123
F.R.D. at 218. This rationale must fail. That rule applies only
when the court needs to deal summarily with criminal contempt
or other matters requiring immediate action to maintain order.85
For only in such instances of disruptive or contumacious con
duct in the courtroom may prior notice and an opportunity to
be heard be dispensed with. In re Chaplain, 621 F.2d 1272,1275
(4th Cir.), cert, denied, 449 U.S. 834 (1980); In re McDonald,
819 F.2d 1020, 1024 (11th Cir. 1987); Miranda, 710 F.2d at 522.
A conflict of interest is obviously not one of these instances, and
the court’s delay of over two years in imposing penalties
demonstrates that there was no urgency.
The lower court also erroneously reasoned that the disciplinary
rules impose no restrictions on the court’s ability to deal
with any conduct that occurs in a pending case. 123 F.R.D. at
218. This interpretation is wholly untenable since it allows
the exception to swallow the general rule. Thalheim, 853 F.2d
at 388 & n.7. The court’s reasoning is contradicted not only
by the language of Rule 105.01, which refers to matters com
ing to a judge’s attention “by complaint or otherwise,” but also
by Rule 105.04, which requires that when a judge initiates the
85 “Nothing contained in these Rules shall be construed to deny to this court
such powers as are necessary for the court to maintain control over proceedings
before it, such as proceedings for contempt under Title 18 of the United States
Code or under Rule 42, F.R. Crim. P.”
62
disciplinary proceeding, as occurred in this case, the charges must
be heard by a different judge. These provisions would be super
fluous if Rule 105.00 applied, as the district court said, only to
“situations in which the alleged unethical conduct comes to the
court’s attention from some external source.” 123 F.R.D. at 218.
The district court disregarded all of the required procedures
and contradicted its own prior statements and rulings. The find
ings of and sanctions for ethical violations must be reversed.
V.
Section 706(k) of Title VII Precludes the District Courts
Award of Attorneys’ Fees to the Army
Section 706(k) of Title VII permits a court to “allow the pre
vailing party, other than the [EEO C] or the United States, a
reasonable attorney’s fee.” 42 U.S.C. § 2000e-5(k) (emphasis
added).86 The district court correctly concluded that this express
prohibition of fee awards precluded a sanction under section
706(k) where the government is a prevailing defendant.87 It then
completely undermined this prohibition by awarding sanctions to
the United States in reliance on another statute, court rules, and
the common law. 679 F. Supp. at 1375-76, 1383, 1388-89. This
holding was contrary to the plain language of section 706(k),
congressional intent, and principles of statutory construction.88
An award of fees to a defendant under section 706(k) is a sanc
tion, and the statute denies that sanction to the United States.
The same sanction may not be awarded under another name.
" This provision allows a sanction if the plaintiffs claim was “frivolous, unrea
sonable, or groundless, or . . . the plaintiff continued to litigate after it clearly
became so.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978).
" 679 F. Supp. at 1375; see Butler v. USDA, 826 F.2d 409, 411-14 (5th Cir.
1987). Both courts rejected arguments that the plain meaning of the statute
should be ignored because Title VII originally did not allow suits by govern
ment employees.
" Awards of attorneys’ fees in cases involving the United States are generally
governed by section 2412 of title 28. Section 2412(b) allows awards “ [ujnless
expressly prohibited by statute” Section 706(k) is precisely such a prohibition.
EEOC v. Kimbrough Inv. Co., 703 F.2d 98, 103 (5th Cir. 1983).
63
The plain meaning of the statutory prohibition is supported
by legislative history. Although this history does not show ex
press consideration by Congress of fee awards to the government
as a prevailing defendant in connection with the adoption or
amendment of Title V II,89 later action unambiguously reveals
the congressional intent.
The Civil Rights Attorney’s Fees Act of 1976, now codified
at 42 U.S.C. § 1988, prohibits the United States from receiving
fee awards in language nearly identical to Title VII.90 In pass
ing section 1988, Congress intended to bar the United States from
recovering sanctions in civil rights cases as a defendant:
MR. McCLORY.
. . . . It is my understanding that the Senate bill pro
vides for the allowance of fees to attorneys who pre
vail, for the plaintiff if the plaintiff prevails in court,
or for the defendant if the defendant prevails, or with
respect to suits which are brought involving the In
ternal Revenue Code, if the defendant prevails and can
show that such action was filed in bad faith. In other
words, the United States is excluded from any attorneys’
89 Congress’ decision to afford government employees greater protection from
sanctions than private litigants enjoy should not be upset. Government
employees face greater obstacles in these suits than their private counterparts.
Unlike private sector employees, federal employee complainants
are not mere private attorneys general; they are the only attorneys
general under the enforcement schema . . . Suits in behalf of
federal employees by the Attorney General or EEO C are not
authorized against federal agencies. Indeed, the Attorney General
is frequently counsel for the other side Also unlike private sector
employees, federal employees must first bring their employment
discrimination grievances, not to an independent state or local
administrative body or to EEOC, but to the very agency about
whose practices they are complaining.
Parker v. Califano, 561 F.2d 320, 331 (D.C. Cir. 1977) (citations omitted) (em
phasis added).
90 This section provides that “the court, in its discretion, may allow the prevail
ing party, other than the United States, a reasonable attorney’s fee as part
of the costs.”
64
fees under any thesis or under any hypothesis that we
might present with regard to this legislation.
There is a prohibition against the United States
recovering attorneys’ fees either in a civil rights case
or in income tax matters.
MR. DRINAN. That is pervasive in the whole United
States Code . . . .
122 Cong. Rec. 35,116 (1976) (emphasis added).91 In subsequent
colloquy, Representative Drinan, the floor leader of the bill,
made the intent clear:
MR. W HITE.
. . . . Does this act we are attempting to pass now
supersede the court decisions? In other words, would
the defendant get an equal opportunity to receive at
torneys fees, or is the defendant who prevails going
to be limited as to whether or not there is a suit
brought maliciously or in harassment or with other
qualifying features?
MR. DRINAN. If the gentlemen will yield, I will state
that the U.S. Government may not have attorney fees
awarded. In other cases, it belongs in the proper
discretion of the judge. If the suit is of a vexatious and
harassing nature, the defendant should be given his
reasonable attorneys fees. I think it is all carefully
regulated by a body of law which goes back at least
50 years . . . .
Id. at 35,118 (emphasis added).
Subsequent legislative history7 can be an authoritative expres
sion of original intent.92 In Mount Sinai Hospital v. Weinberger,
" E.g., 8 U.S.C. § 1324b; 17 U.S.C. § 505; 42 U.S.C. § 1997a; id. § 2000a-3.
” E.g, Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596 (1980);
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-81 (1969); United States
»■ Waste Indus., 734 F.2d 159, 166 (4th Cir. 1984); Vaneev. Whirlpool Corp.,
716 F.2d 1010, 1012 (4th Cir. 1983), cert, denied, 465 U.S. 1102 & 467 U.S.
1226 (1984).
65
517 F.2d 329 (5th Cir. 1975), cert, denied, 425 U.S. 935 (1976),
the court addressed the effect on the original legislation of
legislative pronouncements made while amending a complex
statutory scheme:
Subsequent statements of Congress about what it
meant years earlier in enacting a law are “entitled to
great weight in statutory construction.” . . . Here we
have Congress at its most authoritative, adding com
plex and sophisticated amendments to an already
complex and sophisticated act. Congress is not mere
ly expressing an opinion on a matter which may come
before a court but is acting on what it understands
its own prior acts to mean.
Id. at 343 (citations omitted), quoted in Bell v. New Jersey, 461
U.S. 773, 785 n.12 (1983). Congress enacted the Civil Rights Acts in
1964, and amended them in 1972. The 1976 Act was a refinement
in the law to respond to the Supreme Court’s decision in Alyeska
Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975).
Thus, the congressional statements in 1976 directly control here93
Resort to section 1988’s legislative history is necessary not only
because the relevant language of the two provisions is the same, but
because Congress specifically intended that they have a uniform
meaning. S. Rep. No. 1011, 94th Cong., 2d Sess. 2-6, reprinted
in 1976 U.S. Code Cong. & Admin. News 5908, 5909-13; H.R.
Rep. No. 1558, 94th Cong., 2d Sess. 5-8 (1976). Thus, the Supreme
Court has twice relied on legislative history to section 1988 when
construing the attorneys’ fees provision of Title VII.
In Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980), the
Court held that for the purposes of determining the propriety
of an attorneys’ fees award, sections 706(k) and 1988 “may be
« See also McCrary v. Runyon, 515 F.2d 1082, 1090-91 (4th Cir. 1975) (en banc)
(“In considering an award of fees in an action based on the older civil rights
statutes, we look to more recent congressional determinations . . . .”) (citing
Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971)), affd, 427
U.S. 160 (1976).
66
considered to have the same substantive content. . . . They
authorize fee awards in identical language, and Congress
acknowledged the-close connection between the two statutes
when it approved § 1988.” Id. at 758 n.5 (citations omitted).
Similarly, in New York Gaslight Club, Inc. v. Carey, 447 U.S.
54 (1980), the Court relied on legislative history to section 1988
when construing the propriety of an attorneys’ fee award under
section 706(k). It noted that Section 1988 is “ legislation similar
in purpose and design to Title VII’s fee provision.” Id. at 70 n.9.94
This Court has held likewise. Wheeler v. Durham City Bd.
ofEduc., 585 F.2d 618, 621 (4th Cir. 1978); Daly v. Hill, 790
F.2d 1071, 1083 n.17 (4th Cir. 1986) (referring to section 1988
and section 1617). As have other courts,95 this Court in other
contexts has also specifically relied upon Rep. Drinan’s remarks
concerning the passage of section 1988. Daly, 790 F.2d at 1083
n.17. They are due the same weight in the Title VII context.
See Thornberry v. Delta Air Lines, 676 F.2d 1240, 1244 (9th
Cir. 1982), vacated on other grounds, 461 U.S. 952 (1983).
Moreover, as part of a comprehensive and detailed statutory
scheme, section 706(k) excludes the operation of other general
statutes and court rules. Brown v. General Services Admin., 425
U.S. 820, 834 (1976). In Brown, Title VII was held to be the ex
clusive and preemptive remedy governing employment discrimina
tion cases where the federal government is the defendant. The
“ See Moore v. National Ass’n of Sec. Dealers, Inc., 762 F.2d 1093,1100,1116-17
(DC. Cir. 1985); Gerena-Valentin v. Koch, 739 F.2d 755, 760 n.2 (2d Cir. 1984);
Carpenter c. Stephen F. Austin State Univ., 706 F.2d 608, 633 (5th Cir. 1983);
cj. Independent Fed’n of Flight Attendants v. Zipes, 109 S. Ct. 2732, 2735
n.2 (1989) (“fee-shifting statutes’ similar language is a strong indication" that
they are to be interpreted alike); Northcross v. Board of Educ., 412 U.S. 427,
128 (1973) (applying Title II attorneys’ fees standard to desegregation legisla
tion, noting similar language and purpose of two statutes); Hensley v.
Eckerhart, 461 U.S. 424, 433 n.7 (1983) (opinion stated its applicability to all
fee statutes with the same language).
BE.g., Evans v. Je ff D., 475 U.S. 717, 730 n.18, 732 n.22 (1986); Maine v.
Thiboutot, 448 U.S. 1, 9-10 (1980); Alfonso v. United States, 613 F.2d 1309,
1313 (5th Cir. 1980).
67
Court specifically noted that Title VII “governs such issues as
. . . attorneys’ fees.” 96
Likewise, a comprehensive statutory scheme cannot be
nullified by a general rule of civil procedure. Thus, in Crawford
Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987), the Court
rejected a construction of rule 54(d) that would have allowed
a recovery of costs beyond those specified in 28 U.S.C. § 1920,
482 U.S. at 445; see Wheeler v. Durham City Bd. ofEduc., 585
F.2d at 623 (“ [wjhere attorneys’ fees are expressly authorized
by statute, as in § 1617, Rule 54(d) is no longer relevant,” the
statutory authorization is controlling).
This rationale applies to Rule 11 as well. In United States e.
McPherson, 840 F.2d 244 (4th Cir. 1988), a taxpayer sought a
sanction against the government. Denied it under an applicable
provision of the Internal Revenue Code, he argued alternative
ly for a sanction under Rule 11. The Court held that applica
tion of Rule 11 was precluded because the tax code “detailed
how and under what circumstances fees may be allowed,” and
this “provision would be rendered pointless if fees could also be
awarded in such cases under Rule 11 standards.” Id. at 246; see
also Cheek v. Doe, 828 F.2d 395, 398 (7th Cir.) (referring to
penalty ceiling in the tax code as setting the maximum amount
of sanctions in tax protester cases under Rule 11), cert, denied,
484 U.S. 955 (1987); 2A J. Moore, Moore’s Federal Practice
1 11.02[3] (1987) (it is preferable to use more closely tailored
statutory provisions or rules to exclusion of Rule 11 even as to
96 425 U.S. at 835; see Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S.
437, 445 (1987) (“[Wjhere there is no clear intention otherwise, a specific statute
will not be controlled or nullified by a general one, regardless of the priority
of enactment.”); see also Great Am. Fed. Sav. ir Loan Ass’n v. Novotny, 442
U.S. 366, 375-78 (1979) (Title VII preempts remedy under section 1985); Fourco
Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 228-29 (1957) (patent venue
provision controls to the exclusion of the general venue statute); cf. Patterson
v. McClean Credit Union, 109 S. Ct. 2363, 2375 (1989) (court narrowed con
struction of section 1981, precluding recovery for certain discriminatory con
duct; otherwise, statutory prerequisites in Title VII would be rendered a “dead
letter”); Abex Corp v. Ski’s Enters., 748 F.2d 513 (9th Cir. 1984) (EAJA cannot
be used to override governmental priority established under tax lien statutes).
68
misconduct apparently covered by Rule 11); cf. Zaldivar v. City
of Los Angeles, 780 F.2d 823, 830 (9th Cir. 1986) (“Nor is [Rule
11] properly used to sanction the inappropriate filing of papers
where other rules more directly apply.”).97
Section 706(k) specifically prohibits a sanction for bringing
or maintaining frivolous claims against the government. The
district court, however, imposed sanctions precisely because it
found that claims were frivolously brought and maintained. See
679 F. Supp. at 1330, 1365, 1370 (reducing fee award to extent
claims were not frivolous). It utilized Rule 11, Rule 16, and sec
tion 1927 to impose a sanction forbidden by section 706(k).98
The general language of these other rules and statutes as ap
plied cannot be used to achieve the result specifically proscribed
by Congress. See also Jordon v. Gilligan, 500 F.2d 701, 705 (6th
Cir. 1974) (“ [I]f a party is immune from an award of attorneys’
fees as such, that immunity is not altered by taxing the fees as
part of the costs. If the award is void in one form, it is void in
the other.”), cert denied, 421 U.S. 991 (1975).99
* Liability for attorneys’ fees is a substantive obligation. Montgomery Ward
bCo. v. Pacific Indem. Co., 557 F.2d 51, 55-58 (3d Cir. 1977); see Alyeska,
421 U.S. at 259 n.31; Culberston v. Jno. McCall Coal Co., 495 F.2d 1403 (4th
Cir.), cert, denied, 419 U.S. 1033 (1974); H.R. Rep. No. 442, 99th Cong., 1st
Sess. 13, 21-22 (1986); 134 Cong. Rec. S16,296 (daily ed. Oct. 14,1988) (remarks
of Sen. Heflin). Title VII governs that obligation and the Federal Rules of
Civil Procedure may not alter or expand it. 28 U.S.C. § 2072(b); see Ragan
o. Merchants Transfer ir Warehouse Co., 337 U.S. 530, 533 (1949). See generally
Burbank, Proposals to Amend Rule 68 — Time to Abandon Ship, 19 U. Mich.
J.L. Ref. 425, 428-30 (1986).
“The district court failed to allocate the fees awarded according to the par
ticular statute or rule violated, instead imposing one lump sum and attemp
ting to justify it all under the various authorities that it considered inter
changeable. 679 F. Supp. at 1392. In contradiction, under its section 706(k)
analysis, the court pointed to the differences under other sanctions mechanisms,
eg., such as who may be held liable (attorney versus client). This analysis
is unavailing. Section 706(k) says the government shall not receive, and that
proscription is violated no matter who pays the fee award. Sanctioning the
lawyer as opposed to the client in no way lessens the chilling effect on civil
rights claims by government employees that Congress sought to prevent.
"The Court need not decide whether section 706(k) forbids use of the rules
of procedure to impose sanctions in the government’s favor for conduct other
than the assertion of frivolous claims. E.g., Fed. R. Civ. P. 37(b).
69
The district court likewise erred in imposing sanctions under
the “bad faith” exception to the American Rule See 679 F. Supp.
at 1375-76. Congress intended the language in section 706(k)
to preclude the award of fees to the United States under any
theory. See supra pp. 64-65. “ [E]ven where ‘fee-shifting’ would
be appropriate as a matter of equity, Congress has the power
to circumscribe such relief.” Hall v. Cole, 412 U.S. 1, 9 (1973);
see Alyeska, 421 U.S. at 249. The prohibition in section 706(k)
extends to the common law bad faith exception.100
Where the plain language of a statute prohibits fee awards
concerning the United States, such a prohibition permits no “bad
faith” exception. For example, prior to 1980, 28 U.S.C. § 2412
prohibited the award of attorneys’ fees to the prevailing party
in any action involving the United States.101 Courts repeatedly
held that by “its literal terms,” the statute “admits of no judicially
fashioned ‘bad faith’ exception.” 102 The same must be true of sec
tion 706(k). Indeed, far less explicit evidence of congressional
intent is sufficient to pre-empt attorneys’ fees awards under the
100 Copeland v. Martinez, 603 F.2d 981 (D.C. Cir. 1979), cert, denied, 444 U.S.
1044 (1980), which held to the contrary, has been superseded by the Supreme
Court’s later decisions in Roadway and New York Gaslight. In Butler v. USDA,
the court followed Copeland, without even discussing its reasoning or the
supervening Court decisions. The case involved a pro se appellant, and the
court need not have reached the issue because it found no evidence of bad
faith. 826 F.2d at 414.
101 28 U.S.C. § 2412 (1978) (amended 1980) provided in part:
Except as otherwise specifically provided by the statute, a judgment
for costs, as enumerated in section 1920 of this title but not includ
ing the fees and expenses of attorneys may be awarded to the pre
vailing party in any civil action brought by or against the United
States or any agency or official of the United States acting in his
official capacity, in any court having jurisdiction of such action.
10J Rhode Island Comm, on Energy v. General Seres. Admin., 561 F.2d 397,
405 (1st Cir. 1977); see Gibson v. Davis, 587 F.2d 280 (6th Cir. 1978), cert,
denied, 441 U.S. 905 (1979); Donovan v. Nichols, 646 F.2d 190, 192 (5th Cir.
1981); see also Alyeska, 421 U.S. at 268-69 (section 2412 on its face precludes
fee award under common law exception).
70
common law ,103 including sanctions for bad faith litigation. In
re Reid, 854 F.2d 156, 161-62 (7th Cir. 1988); Byram Con-
cretanks, Inc. v. Warren Concrete Prods. Co., 374 F.2d 649, 653
(3d Cir. 1967), cited in Christiansburg, 434 U.S. at 419 n.13.
The language in section 706(k) is explicit in its prohibition,
and legislative history shows that Congress intended to preclude
bad faith awards in favor of the government. The lower court
thus erred in awarding fees to the Army under the bad faith
exception, as well as under Rule 11, Rule 16, and section 1927.
VI.
The District Court Erred in Fining the Attorneys
for the “Expenses” of the Court
Without warning, the district court imposed upon plaintiffs
and their counsel a penalty of nearly $38,000 for the “expenses”
of the court and its staff. 679 F. Supp. at 1324-26, 1364-65. In
addition to being unjustified by the conduct of the attorneys
or their clients, this sanction was legally erroneous in other ways.
There is no authority or need for such a massive retribution,
especially one imposed without the constitutional prerequisites
of prior notice or an opportunity to be heard, and without the
procedures required under criminal contempt law.
A. The District Court Lacked Authority to Impose this
Fine
The lower court sub silentio found authority to impose this pen
alty under section 1927, Rules 11 and 16, and the “bad faith” excep
tion to the American Rule See 679 F. Supp. at 1380, 1383, 1388,
1390. None of these authorities, however, permits such a radical
and fundamental shifting of costs from the judiciary to litigants.
“ See Fleischmann Distilling Carp. v. Maier Brewing Co., 386 U.S. 714, 719 (1967)
(because the Lanham Act “meticulously detailed the remedies” available to a plain
tiff whose trademark has been infringed, Court inferred a congressional intent
to preclude a common law award of attorneys’ fees); see also Bloomer v. Liberty
Mut. Ins. Co., 445 U.S. 74 (1980) (finding “common fund” exception to American
Rule pre-empted by federal longshoreman statute).
71
Section 1920 of the Judicial Code governs the taxation of court
costs. Although it provides for the award of fees for the court
clerk, marshall and court reporter, the statute makes no provi
sion for payment of the salary of the judge, the judges law clerk,
or other staff. 28 U.S.C. § 1920.
Congress specifically addressed unreasonable or vexatious
multiplication of litigation in section 1927. Appellate courts have
unanimously found that Congress did not intend costs under
this section to include court expenses.104 Congress amended sec
tion 1927 in 1980 to permit awards of attorneys’ fees. H.R. Rep.
No. 1234, 96th Cong., 2d Sess. 8, reprinted in 1980 U.S. Code
Cong. & Admin. News 2781. Although it extensively examined
the subject of frivolous litigation, Congress made no provision
for additional court costs in section 1927 or in section 1920.
Nor do Rules 11 and 16 authorize the courts to privatize
judicial costs. Neither the Rules nor their drafting history reflects
any intent to initiate such a radical departure from traditional
practice. The drafters likely realized that such a result would
impermissibly conflict with sections 1920 and 1927. See Craw
ford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442 (1987).l0S
Finally, there is no inherent power to impose such a penalty.
The taxation of forum “costs” based on the court’s inherent
power106 redistributes litigation expenses in a manner contrary
104 Eash v. Riggins Trucking, Inc., 757 F.2d 557, 560 (3d Cir. 1985) (en banc);
United States v. Blodgett, 709 F.2d 608, 609 (9th Cir. 1983); United States
v. Ross, 535 F.2d 346 (6th Cir. 1976); United States v. Austin, 749 F.2d 1407,
1409 (9th Cir. 1984). The same judgment is reflected in section 706(k), which
specifically limits recovery of costs to the prevailing party and says nothing
about fines for the court.
105 The court need not decide here whether Rule 11 would permit (subject to
due process constraints) imposing a fine under a different rationale than the
lower court relied on or in a substantially smaller amount. E.g., Donaldson
v. Clark, 819 F.2d 1551 (11th Cir. 1987) (en banc) ($500 fine).
« E.g., White v. Raymark Indus., 783 F.2d 1175,1177 (4th Cir. 1986). Because
this power is shielded from direct democratic controls, it must be exercised
with restraint and discretion. Roadway Express, Inc. v. Piper, 447 U.S. 752,
764 (1980); see Bloom v. Illinois, 391 U.S. 194, 202 (1968) (reflecting concern
about “unbridled” contempt power).
72
to the “American Rule” or any of its exceptions. This rule re
quires that parties “shoulder their own counsel fees and other
litigation expenses absent statutory or contractual authority for
an alternative allocation.” Batson v. Neal Spelce Assocs., Inc.,
805 F.2d 546, 550 (5th Cir. 1986); see Fleischmann Distilling
Corp. v. Maier Brewing Co., 386 U.S. 714, 717 (1967); F.D. Rich
Co. v. United States, 417 U.S. 116, 128 (1974) (Congress rather
than the courts should address further departures from the
American Rule). A narrow exception exists for bad faith litiga
tion, but under this exception the Supreme Court has never held
or suggested that judicial salaries may be charged to litigants.
Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240,
258-59 (1975); F.D. Rich Co., 417 U.S. at 129.
The courts have no “ roving authority” to tax their salaries,
for such a practice “would make major inroads on a policy m at
ter that Congress reserved for itself.” Alyeska, 421 U.S. at 269.
The ostensible concerns reflected in the district court’s opinion
are more appropriately associated with congressional budget
decisions rather than an Article III function. See 679 F. Supp.
at 1324 (concern for the “ taxpayers of the United States”); id.
at 1391 (same) & n.279 (lamenting the “country’s astronomical
trade and budget deficits”); id. at 1392 (government is not a
profit-making enterprise).
Courts of appeal have consistently rejected attempts by district
courts to tax their salaries as “costs.”107 In Ray A. Scharer & Co.
v. Plabell Rubber Products, Inc., 858 F.2d 317 (6th Cir. 1988),
the Sixth Circuit reversed an assessment of the lower court’s costs
of operation as a sanction. The district court had assessed over
$19,000 “ for the cost of the Court’s wasted time” incurred in
presiding over a proceeding where a mistrial was declared.
Vacating the assessment, the appellate court expressed “doubt
107 The lower court cited only a few district court opinions for the proposition
that litigants can be forced to pay the court’s pro-rata salary. See 679 F. Supp.
at 1324. The only decision cited that was the subject of an appellate court opinion
was reversed, a development not noted below. Olga’s Kitchen of Hayward, Inc.
c. Papo, 108 F.R.D. 695 (E.D. Mich. 1985) ($1,000 award of court’s costs), rev’d
in relevant part, No. 85-1581, slip. op. at 48 n.12 (6th Cir. Feb. 16, 1987) (un
published opinion) (LEXIS, Genfed Library, US App file).
73
. . . that the court may or should assess its costs of operation’
as sanctions especially without a full opportunity for the offend
ing party or parties to be assessed to be heard or to challenge
the basis and reasonableness of such sanction.” Id. at 321.
The “expenditure” of court resources might be used as a pretext
for the imposition of a massive fine, limited only by judicial
whim. The rationale could extend to electricity, salaries of
maintenance employees, and depreciation of the courthouse
itself. See Ross, 535 F.2d at 391.108 It is doubtful whether an
award of costs may ever lawfully extend beyond marginal ex
penses, objectively quantifiable, incurred directly because of pro
ven misconduct. In Eash v. Riggins Trucking, 757 F.2d 557 (3d
Cir. 1985) (en banc), a bare majority of the court upheld a $390
sanction against a defendant for belatedly settling a case. The
amount represented the cost of impanelling jurors that the
judiciary incurred as a result of the delay in settlement. Eash
overruled a prior en banc decision, Gamble v. Pope ir Talbot,
Inc., 307 F.2d 729 (3d Cir.) (en banc), cert, denied, 371 U.S.
888 (1962), in which a divided court vacated a $100 sanction
against an attorney for filing a late brief. In White v. Raymark
Industries, 783 F.2d 1175 (4th Cir. 1986), the court approved
a juror cost sanction of $2,000 imposed pursuant to a local court
rule. In Eash and Raymark, the penalty assessed was nominal
and objectively determinable by reference to an additional cost
that was incurred directly because of the misconduct found.
None of these factors is present here.
Even assuming such a fine could be within the court’s authori
ty, due process would require that the link between the con
duct sanctioned and the fine imposed be subject to contention.
This result would improperly cast the court as adverse to a
108 The lower court billed time for itself and its law clerks at an annualized
rate of approximately $120,000 ($60 per person per hour), far in excess of the
salaries they are paid. See 679 F. Supp. at 1325. The relationship to any ac
tual cost is thus questionable. See 28 U.S.C. § 1927 (limited to costs and ex
penses “ incurred because of such misconduct”); Fed. R. Civ. P. 11 (expenses
“ incurred because o f ’ the filing).
74
litigant.109 The Supreme Court has “ jealously guarded” the re
quirement of neutrality in adjudicative proceedings, which
preserves both the appearance and reality of fairness. Marshall
v. Jerrico, Inc., 446 U.S. 238, 242 (1980). Once the court con
templates submitting a subjective bill for its costs, its status as
an independent trier of fact is lost,110 especially here, where the
bill was submitted sua sponte, after the matter had been sub
mitted for decision, and without notice to the parties.111
The lower court attempted to justify the award of costs as a
deterrent. E.g., 679 F. Supp. at 1390. The fine came too late, how
ever, to affect the conduct in this case See In re Yagman, 796 F.2d
1165, 1184 (9th Cir. 1986), cert, denied, 484 U.S. 963 (1987).
Moreover, the court failed to explain why the huge award to the
Army was alone insufficient to accomplish future deterrence. This
failure itself is reason to disapprove the extraordinary penalty.
119 Such an inquiry should question whether the court has an obligation to
mitigate its expenses by informing the parties when the costs meter starts
running and to avoid extended satellite litigation. Cj. Schwarzer, Rule 11
Revisited, 101 Harv. L. Rev. 1013, 1019 (1988) (“If a claim or defense is indeed
frivolous, that fact should be sufficiently apparent, early in the litigation pro
cess, for the judge or opposing counsel to address it and, by motion or other
appropriate measures, eliminate it with minimum expenses.”). The “tim e, ex
pense and difficulties of proof inherent in litigating the question of what con
stitutes” a reasonable judge’s bill should give the court considerable pause before
authorizing its collection. F.D. Rich, 417 U.S. at 116.
“ See Terrell v. United States, 6 F.2d 498, 499 (4th Cir. 1925) (judge cannot
be a witness). That an award of costs for the court creates an ill fit with the
adversary system is especially apparent on appeal. Snow Machines, Inc. v.
Hedco, Inc., 838 F.2d 718, 726 (3d Cir. 1988) (“there is no appellee, and the
district judge is the closest thing to an adversary”).
m In Plabell, the Sixth Circuit reversed in part because there had been inadequate
notice and opportunity to be heard with respect to the assessment, even though
the party sanctioned had some prior notice that the court was contemplating
a sanction of the type and amount awarded, considerably more process than was
afforded by the lower court here. 858 F.2d at 320; see also Gagliardi v. McWil
liams, 834 F.2d 81, 83 (3d Cir. 1987) (reversing sanction of injunction against
future filings for lack of notice, even though pleading sought Rule 11 sanctions
and “other appropriate relief which the court deems just and proper”); cj.
Raymark, 783 F.2d at 1177 (cost imposed under local rule, after notice).
75
Cabell v. Petty, 810 F.2d 463, 467 (4th Cir. 1987) (“the least severe
sanction adequate to serve the purpose should be imposed”); see
Herbert v. Saffell, 877 F.2d 267, 270 (4th Cir. 1989) (reversing
Rule 41(b) dismissal for district court’s failure to consider whether
“other, less drastic sanctions” would accomplish purpose).
Members of the bar know that district courts have a variety of
means to control their dockets and the conduct of lawyers. There
is no need to add court salaries to the sanctions arsenal P2 The
absence of objective standards and a true adversarial process for
imposing these costs creates a substantial risk of error, if not abuse,
and destroys the appearance of impartiality. Pre-existing
mechanisms provide the necessary deterrence without the flaws
that inhere in this dangerous assertion of power.113
B. The Sanction Was a Form of Criminal Contempt
Imposed Without the Required Procedures
The unconditional order requiring payment of nearly $38,000
to the court was a punitive fine of the type that can only be
imposed for conduct that constitutes criminal contempt. Federal
Rule of Criminal Procedure 42(b) and federal law prescribe the
procedure to be followed in criminal contempt proceedings. This
procedure includes appropriate notice as defined in Rule 42(b),
and an opportunity to demand a trial by jury. See 42 U.S.C.
§ 2000h (in criminal contempt proceedings arising under Title
VII, “the accused, upon demand therefor, shall be entitled to
a trial by jury, which shall conform as near as may be to the
m See Tiedel v. Northwestern Mich. College, 865 F.2d 88, 94 (6th Cir. 1988)
(finding imposition of attorneys’ fees pursuant to local mediation rule out
side the scope of inherent power, court noted that there was no evidence that
this “extraordinary and exceptional measure” was the only way to assure suc
cess of mediation scheme).
U3 The lower court made no finding that counsels’ opposition to the Army’s
sanctions motions was frivolous or undertaken in bad faith. The award of court
costs for the sanctions hearings must be vacated for this reason alone Moreover,
a court may not demand its “costs” from a litigant as a condition to receiving
due process. See Boddie v. Connecticut, 401 U.S. 371, 380-81 (1971); see also
supra section III.D (“fees on fees” not permissible).
76
practice in criminal cases”). Because the procedures required
for imposition of criminal contempt were not followed, this fine
must be vacated. Richmond Black Police Officers Ass’n v. City
of Richmond, 548 F.2d 123, 126-28 (4th Cir. 1977).
The distinction between criminal and civil contempt is that
if the “relief provided is a fine, it is remedial when it is paid
to the complainant and punitive when it is paid to the court,
though a fine that would be payable to the court is also remedial
when the defendant can avoid paying the fine simply by per
forming the affirmative act required by the court’s order.” Hicks
ex rel. Feiock v. Feiock, 108 S. Ct. 1423, 1429-30 (1988). Even
if the contempt is only partly criminal in nature, that criminal
aspect “fixes its character for purposes of procedure on review.”
Penfield Co. v. SEC, 330 U.S. 585, 591 (1947); seeNyev. United
States, 313 U.S. 33, 42-43 (1941).
The fine imposed below has all the indicia of criminal con
tempt. It was exacted for past conduct and not to encourage
prospective performance. The parties cannot avoid the fine by
another act — payment alone is required. The fine is payable
to the court and not to the adversary, a classic indication of
punitive purpose where the penalty is not coercive E.g., Windsor
Power House Coal Co. v. District 6 United Mine Workers, 530
F.2d 312, 317 (4th Cir.), cert, dismissed, 429 U.S. 876 (1976);
Carbon Fuel Co. v. United Mine Workers, 517 F.2d 1348, 1350
(4th Cir. 1975).
The punitive purpose was also betrayed by the conditions
restricting and eliminating the ability of third parties to pay
the fines. The court expressly prohibited the NAACP or the
NAACP Legal Defense and Educational Fund (neither of which
was a party to the proceedings) from paying the fines, and
limited the attorneys’ law firm to paying 75 % of the sanctions
assessed. 679 F. Supp. at 1392. It also refused Mr. Chambers’
offer to bear the fines, fees and costs imposed on all lawyers.
123 F.R.D. at 223. If the purpose was only compensatory, the
court would have had no interest in who satisfied the obliga
tion. See Richmond Black Police Officers Ass’n, 548 F.2d at 125
(requiring personal payment by contemnor was evidence of
77
punitive character). The court’s professed desire to deter,U4 the
immense size of the award, and its questionable propriety also
show a punitive purpose.115
The district court’s efforts to relate the fine to “expenses” of
the judiciary do not overcome its criminal essence. In Hess v.
New Jersey Transit Rail Operations, Inc., 846 F.2d 114 (2d Cir.
1988), the district court had ordered the defendant to pay $1,000
to the court for making a dilatory settlement offer. The figure
represented the approximate cost of empanelling a jury. The Sec
ond Circuit held the fine to be a criminal contempt order, calling
it an “unconditional punishment for past conduct, having only
such deterrent effect as inheres in any criminal punishment.”
Id. at 115 (citing Carbon Fuel); see In re Rumaker, 646 F.2d
870 (5th Cir. 1980) ($500 fine payable to court for expenses in
curred by marshall and clerk’s offices found primarily punitive).
Moreover, the judiciary experienced no actual financial loss
as a result of the conduct punished. The overhead cited by the
court is not a “cost,” as all of these expenses were salaries that
the government would have been obligated to pay even if plain
tiffs had never come to court. In In re Kave, 760 F.2d 343 (1st
Cir. 1985), the district court had imposed a fine of $3,000 on
an attorney, payable to the court, for reimbursement of
stenographer costs, master’s fees, and attorneys’ fees. The court
of appeals held that this fine was punitive because (among other
u< 679 F. Supp. at 1391; 123 F.R.D. at 223; see also 679 F. Supp. at 1375 (ra
tionale for shifting fees in instances of bad faith is punitive); id. at 1390 (more
than compensation, aim of sanction is to deter and punish).
115 Yagman, 796 F.2d at 1180-81; see Shillitani v. United States, 384 U.S. 364,
370 n.5 (1966) (deterrence is a characteristic of criminal contempt); cj.
Donaldson v. Clark, 819 F.2d 1551, 1559 n.10 (11th Cir. 1987) (en banc); id.
at 1563-64 (Johnson, J., concurring). In Donaldson, the court thought com
pliance with Rule 42(b) would be unnecessary where a $500 fine was imposed,
payable to the clerk, under Rule 11. The opinions indicate that the court would
consider contempt proceedings mandatory, however, for a fine of the nature
and magnitude imposed below. 819 F.2d at 1561 (more extensive procedural
safeguards required where sanction is severe in amount or arguably unrelated
to the misconduct).
78
things) there was “no outstanding documentation or testimony
upon which [to] conclude that the fine represents reasonable
compensation for losses incurred by the victim of the alleged
contemnor’s conduct.” Id. at 352 (emphasis in original); see
Windsor Power House, 530 F.2d at 317 (finding proof of punitive
purpose where record contained no evidence that the fine
equaled the complaintant’s actual loss). The record here is
likewise barren of documentation or admissible testimony that
proves the court’s “costs.” 116 This deficiency, the large amount
of the fine, and its punitive purpose all prove the error in fail
ing to afford the attorneys criminal contempt protections.
VII.
The District Court Erred in Imposing Sanctions
Under its Inherent Power and Section 1927
A. There Was No Basis for Sanctions Under the Court’s
Inherent Power
Under the “bad faith” exception to the American Rule, a court
may impose sanctions only in “exceptional cases” where it deter
mines that an “unfounded action” has been brought “in bad
faith, vexatiously, wantonly, or for oppressive reasons.”117 Since
an “award of attorney fees under the ‘bad faith’ exception is
punitive . . . the penalty can be imposed only in exceptional
The findings (679 F. Supp. at 1324-26, 1364-65) are based solely on asser
tions submitted by the court itself, and this proof is not competent. See Fed.
R. Evid. 605 (judge may not testify as a witness). They are also improperly
based on judicial notice of various costs, which the parties had no opportuni
ty to comment upon. Fed. R. Evid. 201(b), (e). None of the court’s assertions
about the time spent by it or its staff were subject to cross-examination, and
thus are inadmissible hearsay. Fed. R. Evid. 802; see 6 J. Wigmore, Evidence
in Trials at Common Law § 1805, at 347 (Chadbourn rev. 1976).
Larouche v. National Broadcasting Co., 780 F.2d 1134, 1140 (4th Cir.)
(quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 258-59
(1975)), cert, denied, 479 U.S. 818 (1986); Nelson v. Piedmont Aviation, Inc.,
750F-2d 1234, 1238 (4th Cir. 1984), cert, denied, 471 U.S. 1116 (1985); Brewer
c' School Bd. of Norfolk, 456 F.2d 943, 949 (4th Cir.), cert, denied, 406 U.S.
933 (1972).
79
cases and for dominating reasons of justice.”118 To “award fees
under the bad faith exception a court must find clear evidence
that the losing party’s claims were ‘entirely without color and
made for reasons of harassment or delay or for other improper
purposes.’ The test is conjunctive and neither meritlessness alone
nor improper purpose alone will suffice.”119
The only “finding” made below with respect to the bad faith
of counsel was:
11. As for plaintiffs’ counsel, they had the responsibility
to ascertain and assess the facts in light of the generally
discernible legal standards for determining unlawful
discrimination under Title VII. Counsel, experienced
in the field, have been trained to make this legal
analysis and reach a rational conclusion about the
merits of plaintiffs’ numerous claims. If this had been
done to any professional degree, it is inconceivable
that many of plaintiffs’ claims would have been filed
and clearly none would have been maintained after
the close of discovery.
679 F. Supp. at 1204. The court thus reduced bad faith to a lack
of professionalism, which does not constitute the necessary
“specific finding” of an improper purpose that “ha[s] to precede
any sanction under the court’s inherent powers.” Roadway Ex
press, Inc. v. Piper, 447 U.S. 752, 767 (1980).
Moreover, none of the Blue or Harris claims were frivolous.
This, quite simply, ends the inquiry, and requires reversal of the
bad faith sanctions. See Colombrito v. Kelly, 764 F.2d 122,133
m Beaudry Motor Co. v. Abko Properties, Inc., 780 F.2d 751 (9th Cir.) (quoting
United States v. Standard Oil Co., 603 F.2d 100, 103 (9th Cir. 1979)), cert,
denied, 479 U.S. 825 (1986); Morris v. Peterson, 871 F.2d 948, 950 (10th Cir.
1989); Nepera Chem., Inc. v. Sea-Land Serv., Inc., 794 F.2d 688, 702 (D.C.
Cir. 1986).
119 Sierra Club v. United States Army Corps of Eng’rs, 776 F.2d 383, 390 (2d
Cir. 1985), cert, denied, 475 U.S. 1084 (1986); see Dreiling v. Peugeot Motors,
850 F.2d 1373, 1384 (10th Cir. 1988).
80
(2d Cir. 1985); Nemeroffv. Abelson, 620 F.2d 339, 348 (2d Cir.
1980) F°
B. The Court Erred in Imposing Sanctions Under Sec
tion 1927
Ignoring the language of the statute121 and overwhelming
authority that intentional misconduct is required under section
1927,122 the lower court sanctioned the attorneys for their
“negligent conduct.” 679 F. Supp. at 1383. This standard is wrong
as a matter of law and the imposition of section 1927 sanctions
must be reversed.
According to the court below, “ ‘unreasonable’ behavior im
plies an incorporation of pure negligence concepts” since
“negligence is a matter of risk . . . quintessential^ . . . defined
as ‘conduct which involves an unreasonably great risk.’ ” Id.
at 1381. Likewise, according to the court, “vexatiousness” means
conduct which is “without reasonable or probable cause.”
Id. at 1382. Thus, the court below incorrectly read Cong
ress’ requirement that an attorney’s conduct “multipl[y] the
“ Underlying the court’s conclusion here was the erroneous notion that drop
ping a claim can be sanctionable. If a claim is frivolous, its withdrawal should
be encouraged, not punished. If a claim is not frivolous, sanctions could not
be awarded at the conclusion of the case, so they surely cannot be justified
at an earlier stage
“ 28 U.S.C. § 1927 provides: “Any attorney . . . who so multiplies the pro
ceedings in any case unreasonably and vexatiously may be required by the
court to satisfy personally the excess costs, expenses, and attorneys’ fees
reasonably incurred because of such conduct.”
m Oliveri v. Thompson, 803 F.2d 1265, 1273 (2d Cir. 1986), cert, denied, 480
U.S. 918 (1987); New Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298, 1906
(9th Cir. 1989); Burull v. First N atl Bank of Minn., 831 F.2d 788, 790 (8th
Cir. 1987), cert, denied, 108 S. Ct. 1225 (1988); Manax v. McNamara, 842
F.2d 808, 814 (5th Cir. 1988); Ford v. Temple Hosp., 790 F.2d 342, 346-50
(3d Cir. 1986); see Blair v. Shenandoah Women’s Center, 757 F.2d 1435, 1438
(4th Cir. 1985) (affirming section 1927 sanction based on “a correct finding
of subjective bad faith”). The court purported to be applying law adopted
by the Sixth Circuit. 679 F. Supp. at 1381. It was wrong. See In re Ruben,
® F.2d 977, 983-87 (6th Cir. 1987) (“negligent acts will not support an award
under § 1927”), cert, denied, 108 S. Ct. 1108 (1988).
81
the proceedings . . . unreasonably and vexatiously” to mean
merely that the conduct be “unreasonable” and “without reason.”
“ [A]ll parts of a statute, if at all possible, are to be given effect,”
and “clear use of different terminology within a body of legis
lation is evidence of an intentional differentiation.” 123 Congress
did not mean to be redundant when it required that proceedings
be multiplied unreasonably and vexatiously. “Vexatious” means
“intended to harass.” Webster’s Ninth New Collegiate Dictionary
1312 (1986). The lower court improperly read this crucial ele
ment of intent out of the statute.
As a second basis for adopting a negligence standard, the lower
court looked to the 1980 amendment to section 1927, which added
attorneys’ fees to the statute’s sanctions. The court assumed that
Congress must have intended to change the standard of care, else
the statute would be redundant to the court’s inherent powers.
679 F. Supp. at 1382.124 This assumption is wholly unfounded.
Congress did not change the standard of care by its 1980 amend
ment. It merely supplemented the sanctions available in response
to the decision in Roadway Express that “excess costs” did not in
clude attorneys’ fees. The legislative history proves this:
As a compromise [Congress] agreed to amend section
1927 . . . in one respect — to broaden the range of in
creased expenses which an attorney who engages in
dilatory litigation practices may be required by the judge
to satisfy personally. . . . The amendment agreed to
by the managers expands the category of expenses the
judge might require an attorney to satisfy personally
to include “excess costs, expenses, and attorneys’ fees
reasonably incurred because of such [dilatory] conduct.”
123 Weinberger v. Hynson, Westcott, ir Dunning, Inc., 412 U.S. 609, 633 (1973);
Lankford v. Law Enforcement Assistance Admin., 620 F.2d 35, 36 (4th Cir. 1980);
see 2A N. Singer, Statutes and Statutory Construction § 46.06 (4th ed. 1984).
114 The court’s concern for redundancy here is inconsistent with its equating
“unreasonable” with “vexatious.”
82
H.R. Rep. No. 1234, 96th Cong., 2d Sess. 8 (emphasis added),
reprinted in 1980 U.S. Code Cong. & Admin. News 2781, 2782.
Section 1927 sanctions are to be imposed only “if an attorney
violate[s] the existing standard covering dilatory conduct.” Id. The
drafters recognized that abrogation of the bad faith standard
could have the deleterious and unwanted result that has occured
here: “The high standard which must be met to trigger section
1927 insures that the provision in no way will dampen the
legitimate zeal of an attorney in representing his client.” 125
Thus, as with inherent power sanctions, the court under sec
tion 1927 must find both that the action was without merit and
that it was prosecuted for an improper purpose. Since the claims
here were not frivolous they cannot be the basis of section 1927
sanctions. Greenberg v. Hilton In ti Co., 870 F.2d 926, 936 (2d
Cir. 1989); O’Rourke v. City of Norman, 875 F.2d 1465 (10th
Cir. 1989); Badillo v. Central Steel b Wire Co., 717 F.2d 1160,
1165 (7th Cir. 1983).
Even if the plaintiffs’ case was frivolous, sanctions are inap
propriate under section 1927. Estate of Bias ex rel. Chargualaf
a Winkler, 792 F.2d 858, 860 (9th Cir. 1986) (citation omitted).
“[B]ad faith is present when an attorney knowingly or recklessly
raises a frivolous argument or argues a meritorious claim for
the purpose of harassing an opponent.” Id. (citations omitted).
The court below alternatively relied upon its bad faith “find
ings” to support sanctions under section 1927. 679 F. Supp. at
m Id. The floor debate confirms this principle.
The managers on the part of the House were firm in their resolve
to maintain the tough standard of current law so that the legisla
tion in no way would dampen the legitimate zeal of an attorney
in representing a client.
Under the agreement of the managers, an attorney may be re
quired to pay costs, as well as expenses and attorney’s fees
reasonably incurred on account of such attorney’s dilatory con
duct. But the standard is that in current law, not the less severe
standard the Senate had agreed to originally.
126 Cong. Rec. 23,625-26 (1980) (remarks of Rep. Mazzoli).
83
1384. There was no sufficient finding of bad faith by the at
torneys. See supra p. 80. Thus, there are no findings that justify
sanctions even under the court’s alternative holding.126 The sanc
tions imposed under section 1927 must, therefore, be reversed.
VIII.
The District Court Erred in Imposing
Sanctions Under Rule 16
In imposing sanctions under Rule 16(f), the district court relied
exclusively on the provision authorizing sanctions “if a party or
party’s attorney fails to participate in good faith.” 679 F. Supp.
at 1389. The court reasoned that “ [i]f an allegation or conten
tion is offered in a final pre-trial order without a reasonable
factual or legal basis, much like Rule 11, it violates Rule 16,”
Id. The lack of “good faith” found by the court consisted of the
assertion of “meritless or frivolous claimjs]” with the knowledge
that opposing counsel will prepare to defend against them. Id.
And according to the court, for final pre-trial orders the
“standards of professional responsibility'” are the same under Rule
16 and Rule 11, so liability does not require a finding of an im
proper motive, bad faith, or reckless conduct. Id.
The district court thus committed four legal errors. First, there
is simply no support in the language or drafting history of Rule
16(f) for the proposition that its standards of conduct and “liability”
mimic those under Rule 11. Rule 16’s drafting history demonstrates
that the court erred in its assertion regarding “standards of pro
fessional responsibility” and in effectively reading “good faith” out
of Rule 16(f), or at least in depriving it of subjective content.
In responding to comments on the published preliminary draft
of the proposed amendments to Rule 16, the Chairman and
m Moreover, the court incorrectly believed that section 1927 “requires” a sanc
tion if liability is found. 679 F. Supp. at 1380. The imposition of sanctions
under this statute (unlike Rule 11) is discretionary, and the court may for
equitable reasons decline to impose sanctions even where it finds a statutory
violation. See Ford v. Temple Hosp., 790 F.2d at 347; Warren v. Reserve Fund,
Inc., 728 F.2d 741, 748 (5th Cir. 1984); Gelco Corp. v. Baker Indus., 779 Fid
26, 28-29 (8th Cir. 1985).
84
Reporter of the Civil Rules Committee recommended rejection
of a proposal to “[djelete 16(f) (sanctions) and incorporate [them]
in one [proposed] separate sanctions rule for 7, 11, 16, 26(g),
37.” Advisory Committee on Civil Rules, Analysis of Comments
Received Re: Proposed Rule 16, at 11 (Dec. 21, 1981).127 One
reason for opposing the proposal to combine sanction provisions
was that “since the standards differ as between some of these
rules, the test for determining whether a violation occurred will
differ.” Id. Judge Mansfield and Professor Miller also recom
mended rejection of a proposal to delete “ the provision for im
position of sanctions ‘if a party or a party’s attorney fails to par
ticipate in good faith,’ ” failing to “see how, if sanctions are to
be a useful deterrent against current delay and wasteful prac
tices on the part of counsel, we can avoid requiring the judge
to determine in certain cases whether the conduct was willful
and in bad faith.” Id. at 13. The Advisory Committee followed
both recommendations. Cf. Whalen v. Ford Motor Credit Co.,
684 F.2d 272, 275-79 (4th Cir.) (en banc) (relying on Advisory
Committee papers), cert, denied, 459 U.S. 910 (1982).
Second, the district court erroneously interpreted the provi
sion in Rule 16(f) on which it relied to apply to a failure “to
participate in good faith” in a pretrial order, when that provi
sion applies only to a failure to so participate in a pre-trial con
ference, as the immediately preceding clause makes clear. See
Hgueroa-Rodriguez v. Lopez-Rivera, 878 F.2d 1488,1491 (1988),
reinstated in part, 878 F.2d 1478, 1486 (1st Cir. 1989) (en banc).
Sanctions may be imposed under Rule 16(f) “with respect to final
pre-trial orders” only for a failure to obey such an order, and
that was not the predicate for the violation found below.128
m This memorandum, which is filed in the National Archives, Washington,
D.C., is reprinted in the addendum to this brief.
“ The district court committed a third, related error in finding that “plain
tiffs counsel violated Rule 16(d) and (e) with respect to both Final Pre-Trial
Orders.” 679 F. Supp. at 1390. The only “violations” of Rule 16 for which sanc
tions may be imposed are stated in Rule 16(f); failing “to participate in good
faith” in a pretrial order is not one of those violations, and there is no basis
for finding that plaintiffs’ counsel failed “to participate in good faith” in the
final pretrial conference.
85
The court also found a violation (“with respect to both Final
Pre-Trial Orders”) for “failing to participate in the final pre-trial
conference and its concomitant final order (s) in good faith
679 F. Supp. at 1390. It did not explain, however, how counsel
failed “to participate in good faith” in the final pretrial con
ference, and the transcript of that conference reveals no such
failure. App. 3381-86; see Figueroa-Rodriguez, 878 F.2d at 1491
(“ [Njothing about the Rule divorces it from the usual require
ment that findings be made adequate to support its invocation.”).
The court evidently believed that if there is a pretrial con
ference at which a pretrial order is discussed, a frivolous con
tention in that order constitutes a failure “to participate in good
faith” in the conference (even if the contentions are not discussed
at the conference, see App. 3386). This theory has no support
in the rule or its drafting history and unreasonably expands the
four discrete violations for which the rule authorizes sanctions.
The district court thus committed the same error that led to
reversal of the Rule 16 sanction in Figueroa-Rodriguez, 878 F.2d
at 1491 n.6, where the district court found that a frivolous sum
mary judgment motion violated Rule 16. The First Circuit
reversed, holding that “the filing of a ‘meritless and frivolous’
pleading [or other paper] does not, in itself, transgress Rule 16.”
Id. at 1491.
Fourth, even if sanctions could be imposed under Rule 16 for
failure “ to participate in good faith” in a pretrial order, the
documents on which the district court relied for that purpose
are not the pretrial orders. Far from “reciting the action taken”
at the final pretrial conference, both pretrial orders are mainly
the parties’ respective contentions and lists of possible exhibits
and witnesses. They were thus more in the nature of pretrial
statements.129 In fact, the “Final Pre-Trial Order” was hardly
129 See McCargo v. Hedrick, 545 F.2d 393, 401 & n.9 (4th Cir. 1976) (pre-1983
requirement that “court shall make an order”); R. Rodes, K. Ripple & C.
Mooney, Sanctions Imposable for Violations of the Federal Rules of Civil Pro
cedure 66-67 (Federal Judicial Center 1981). Compare Manual for Complex
Litigation §§ 21.634, 21.66 (2d ed. 1985).
86
discussed at the final pretrial conference on December 8. App.
3381-86. Finally, even though the latter document was “approv
ed” by the court, it is not clear that the “Supplemental Pre-Trial
Order” was ever “approved” or otherwise adopted by the district
court; if not, it is neither an “order” nor a “pretrial order” for
purposes of Rule 16.
IX.
There Is Neither A Factual Nor A Legal Basis
To Sanction The Law Firm
The district court assessed $1,413.62 against Ferguson, Stein,
Watt, Walls & Adkins, P.A.,130 the firm of the three attorneys in
dividually sanctioned. The firm was not punished for any con
duct of Chambers, Glazer or Sumter, but only because “a
number of other lawyers with the firm participated in this case
in varying minor ways.” 679 F. Supp. at 1392. The court did
not specify which “other” attorneys acted improperly or in what
way. This failure alone constitutes reversible error.131
Moreover, none of the authorities relied upon below support
the imposition of sanctions against a law firm. By its terms, Rule
11 applies only to attorneys and not to law firms. It is the at
torney who must sign all papers, and thereby vouch for their
sufficiency. Fed. R. Civ. P. 11 (“Every pleading, motion and other
paper of a party represented by an attorney shall be signed by
at least one attorney of record in the attorney’s individual
name.”). And it is only the signatory that the court may
130 This was the name of the firm at the time that it was sanctioned; at the
outset of the litigation it was Chambers, Stein, Ferguson & Becton, P.A.; it
is now Ferguson, Stein, Watt, Wallas, Adkins & Gresham, P.A.
U1 See F.H. Krear 6- Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1268
(2d Cir. 1987) (Rule 11); Figueroa-Rodriguez v. Lopez-Rivera, 878 F.2d 1488,
1491 (1988) (Rule 16), reinstated in part, 878 F.2d 1478 (1st Cir. 1989) (en banc);
Dow Chem. Pac. Ltd. v. Rascator Maritime S.A., 782 F.2d 329, 345 (2d Cir.
1986) (bad faith exception); Schwarz v. Folloder, 767 F.2d 125, 132-33 (5th
Cir. 1985) (section 1927).
87
sanction, not the law firm.132 Similarly, no authority supports
the extension of Rule 16 from a “party or party’s attorney” to
the attorney’s law firm. The suggestion is so obscure that research
reveals no Rule 16 case that considers sanctioning a law firm.
See, e.g., Poulis v. State Farm Fire ir Casualty Co., 747 F.2d
863 (3d Cir. 1984); In re Baker, 744 F.2d 1438 (10th Cir. 1984),
cert, denied, 471 U.S. 1014 (1985).
Section 1927 is even more narrowly drawn; it applies only to
“attorney[s] or other person[s] admitted to conduct cases in any
court of the United States.” 28 U.S.C. § 1927. Since law firms
cannot be admitted to practice law, and since the statute re
quires the sanction to be satisfied “personally,” they cannot be
sanctioned under this provision.133 This rationale also underlies
the bad faith exception to the American Rule. See Roadway Ex
press, Inc. v. Piper, 447 U.S. 752, 766 (1980); see also Dow Chem.
Pac. Ltd. v. Rascator Maritime S.A., 782 F.2d 329, 344 (2d Cir.
1986) (“bad faith is personal”). The sactions imposed against
the law firm were thus entirely without factual or legal
justification.
132 See Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 875 & n.13 (5th Cir.
1988) (en banc); Robinson v. National Cash Register Co., 808 F.2d 1119,
1128-29, 1132 (5th Cir. 1987). But see Calloway v. Marvel Entertainment
Group, 854 F.2d 1452, 1478-81 (2d Cir. 1988), cert, granted, 109 S. Ct. 1116
(1989). The Supreme Court recently heard argument to resolve this split in
the circuits. Pavelic &■ Leflore v. Marvel Entertainment Group, No. 88-791
(U.S., argued Oct. 2, 1989).
133 See also Zaldivar v. City of Los Angeles, 780 F.2d 823, 831 (9th Cir. 1986)
(“ jsjanctions under section 1927 may be imposed only against attorneys and
not parties”); Westmoreland v. CBS, Inc., 770 F.2d 1168,1173 (D.C. Cir. 1985)
(section 1927 “applies only to attorney misconduct”); cf. In re Yagman, 796
F.2d 1165, 1188 n.26 (9th Cir. 1986) (raising but not deciding the issue), cert,
denied, 484 U.S. 963 (1987).
88
CONCLUSION
For all of the foregoing reasons, the judgment of the district
court should be reversed insofar as it sanctioned the appellants
and disciplined the attorney-appellants.
Respectfully submitted,
I s i B o n n i e K a y a t t a - S t e i n g a r t
B o n n i e K a y a t t a -S t e i n g a r t
FRIED , FRANK, HARRIS,
SHRIVER & JACOBSON
(A Partnership Including
Professional Corporations)
One New York Plaza
New York, New York 10004
(212) 820-8000
Attorneys for Appellant
Julius L. Chambers
Of Counsel:
J o h n S u l l i v a n
D o u g l a s H . F l a u m
Tr ic ia K a l l e t t K l o s k
P e t e r L . S i m m o n s
Pa t r ic ia S . G e n n e r i c h *
Dated: New York, New York
October 14, 1989
* Not yet admitted to the bar
89
ADDENDUM
GLOSSARY OF ARMY ABBREVIATIONS
AAP . . . . . . . . . . . Affirmative Action Plan
AFGE . . . . . . . . . . American Federation of Government
Employees
C B A ...................... Collective Bargaining Agreement
C P O .................... .. Civilian Personnel Office
DC ......................... Dental Clinic
D E N T A C ............. Dental Activity
FE O R P .................. Federal Equal Opportunity Recruitment
Program
FORSCOM . . . . . Forces Command (Fort Bragg’s Higher
Headquarters)
PPM . . . . . . . . . . . Federal Personnel Manual
FSEE .................. .. Federal Service Entrance Examination
G S .................. General Schedule
HQC ....................... Highly Qualifying Criterion
IMA . ..................... Institute for Military Assistance
KSA. . . . . . . . . . . . Knowledge, Skills and Ability (scoring
classification after June 1982)
M E D D A C ........... Medical Activity
MPA . . . . . . . . . . . Merit Promotion Announcement
M P P ...................... Merit Promotion Plan
MSPB . .................. Merit Systems Protection Board
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N C O IC .................. Non-Commissioned Officer in Charge
O IC .................... .. Officer in Charge
O P F ...................... Official Personnel Folder
O P M .................. Office of Personnel Management
(formerly Civil Service Commission)
Q S I ........................ Quality Step Increase
R I F .................... Reduction-in-Force
S S P .................... Sustained Superior Performance
VRA . . . . . . . . . . . Veterans Readjustment Appointment
W B .................... Wage Board
W G .................... .. . Wage Grade
W L ........................ Wage Leader
W S ........................ Wage Supervisor
A-2
IDENTIFICATION OF KEY PARTICIPANTS
G ERA LD IN E Dental Assistant at DC-6.
BA LLEW Sandra Blue’s co-worker.
LT. CO L. BATTS Deputy Commander. HQ Command in
1979.
LT. CO L.
BEASLEY
Oral surgeon and OIC.
On rating and ranking panel for MPA
285-78.
SANDRA BLU E Plaintiff
Army employee from 1973 to 1983.
JOAN BRO CKI Selected over Blue for MPA 273-79.
JEAN BYRD Staffing Specialist for MPAS 303-79,
273-79, 67-83 and 285-78.
CAROLYN CAVE Dental Assistant at DC-6 since 1980.
SILAR CRASE Director of DC-1 in 1976.
COL.
CR ESSLER
OIC at DC-6 in October 1978.
W ILLIAM
D ICKERSON
Chief of Fort Bragg’s Recruitment and
Placement Division since 1980.
E LD R ID G E Harris’ co-employee, classified GS-5.
BUELAH MAE
HARRIS
Plaintiff-Intervenor.
JERRY HORNE Civilian Personnel Officer at Ft. Bragg
from January 1980.
COL. SH ELD O N Deputy DENTAC Commander
JACOBSON OIC at DC-5 since July 1982
B-l
JEN KIN S COMPACT Sergeant M ajor in 1981.
SGT. WAYNE
JO N ES
N CO IC at DC-6 from May 1980 to
February 1982, and August 1982 to
March 1983.
JAM ES T. LAMB, Dentist assigned to DC-6 in February
D.D.S. 1979.
MAJ.
M ARSHALL
Chief of COMPACT in 1981.
G IN ET TE
MOREAU
Selected over Blue for 303-79.
CO L. SAM UEL
C. MORGAN
Colonel in the Dental Corps
DENTAC Commander from 1978 to
June 1982.
CO L.
PAQUETTE
OIC for DC-6 in December 1979
Blue’s Reviewing Officer.
ALAN PARROW Plaintiffs’ Statistical Expert.
MAJ. PRATT Chief of COMPACT in 1979.
SGT. OSCAR Dental Specialist at Ft. Bragg from 1975
RAMOS-RIVERA to June 1979. NCO IC at DC-6 from
April 1978 until June 1979.
PATRICIA ANN
RANDALL
Dental assistant at DC-6 from July of
1978 until November 1981.
MARILYN
ROACH
Dental Hygienist at DC-6 since 1978.
MAJOR
FR ED E R IC K L.
SYKES
OIC at DC-6 from May 1981 to October
1982.
MR. TODD Selected over Harris for MPA 64-81.
B-2
SGT. JO SEPH
VINCEN T
RUBY W ELLS
CH RISTINE
W H ITLO CK
N CO IC at DC-6 from June 1979 to
April 1980.
Selected over Harris for MPAS 94-81 and
210-81.
Supervisor of Harris and Eldridge, in con
nection with Harris’ classification claim.
B-3
STATUTES
28 U.S.C. § 1920. Taxation of Costs
A judge or clerk of any court of the United States may tax
as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of
the stenographic transcript necessarily obtained for
use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers
necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title.
(6) Compensation of court appointed experts, com
pensation of interpreters, and salaries, fees, expenses,
and costs of special interpretation services under sec
tion 1828 of this title.
A bill of costs shall be filed in the case and, upon allowance,
included in the judgment or decree.
28 U.S.C. § 1927. Counsels liability for excessive costs
Any attorney or other person admitted to conduct cases in
any court of the United States or any Territory thereof who so
multiplies the proceedings in any case unreasonably and vex-
atiously may be required by the court to satisfy personally the
excess costs, expenses, and attorneys’ fees reasonably incurred
because of such conduct.
28 U.S.C. § 2412. Costs and fees
(a) Except as otherwise specifically provided by statute, a
judgment for costs, as enumerated in section 1920 of this
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title, but not including the fees and expenses of attorneys,
may be awarded to the prevailing party in any civil action
brought by or against the United States or any agency or
any official of the United States acting in his or her official
capacity in any court having jurisdiction of such action.
A judgment for costs when taxed against the United States
shall, in an amount established by statute, court rule, or
order, be limited to reimbursing in whole or in part the
prevailing party for the costs incurred by such party in the
litigation.
(b) Unless expressly prohibited by statute, a court may
award reasonable fees and expenses of attorneys in addi
tion to the costs which may be awarded pursuant to subsec
tion (a), to the prevailing party in any civil action brought
by or against the United States or any agency or any of
ficial of the United States acting in his or her official capaci
ty in any court having jurisdiction of such action. The
United States shall be liable for such fees and expenses to
the same extent that any other party would be liable under
the common law or under the terms of any statute which
specifically provides for such an award.
42 U.S.C. § 2000e-5(k) Attorney’s fee; liability of Commission
and United States for costs
(k) In any action or proceeding under this subchapter the
court, in its discretion, may allow the prevailing party, other
than the Commission or the United States, a reasonable
attorney’s fee as part of the costs, and the Commission and
the United States shall be liable for costs the same as private
person.
C-2
FEDERAL RULES OF CIVIL PROCEDURE
Rule 11. Signing of Pleadings, Motions, and
Other Papers; Sanctions
Every pleading, motion, and other paper of a party
represented by an attorney shall be signed by at least one at
torney of record in the attorney’s individual name, whose ad
dress shall be stated. A party who is not represented by an at
torney shall sign the party’s pleading, motion, or other paper
and state the party’s address. Except when otherwise specifically
provided by rule or statute, pleadings need not be verified or
accompanied by affidavit. The rule in equity that the averments
of an answer under oath must be overcome by the testimony
of two witnesses or of one witness sustained by corroborating
circumstances is abolished. The signature of an attorney or party
constitutes a certificate by the signer that the signer has read
the pleading, motion, or other paper; that to the best of the
signer’s knowledge, information, and belief formed after
reasonable inquiry it is well grounded in fact and is warranted
by existing law or a good faith argument for the extension,
modification, or reversal of existing law, and that it is not in
terposed for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation.
If a pleading, motion, or other paper is not signed, it shall be
stricken unless it is signed promptly after the omission is called
to the attention of the pleader or movant. If a pleading, mo
tion or other paper is signed in violation of this rule, the court,
upon motion or upon its own initiative, shall impose upon the
person who signed it, a represented party, or both, an ap
propriate sanction, which may include an order to pay to the
other party or parties the amount of the reasonable expenses
incurred because of the filing of the pleading, motion, or other
paper, including a reasonable attorney’s fee.
Rule 16. Pretrial Conferences; Scheduling; Management
(a) Pretrial Conference; Objectives. In any action, the court
may in its discretion direct the attorneys for the parties and
any unrepresented parties to appear before it for a con
ference or conferences before trial for such purposes as
D-l
(1) Expediting the disposition of the action;
(2) establishing early and continuing control so that
the case will not be protracted because of lack of
management;
(3) discouraging wasteful pretrial activities;
(4) improving the quality of the trial through more
thorough preparation, and;
(5) facilitating the settlement of the case.
(b) Scheduling and Planning. Except in categories of actions
exempted by district court rule as inappropriate, the judge,
or a magistrate when authorized by district court rule, shall,
after consulting with the attorneys for the parties and any
unrepresented parties, by a scheduling conference,
telephone, mail, or other suitable means, enter a schedul
ing order that limits the time
(1) to join other parties and to amend the pleadings;
(2) to file and hear motions; and
(3) to complete discovery.
The scheduling order also may include
(4) the date or dates for conferences before trial, a
final pretrial conference, and trial; and
(5) any other matters appropriate in the circumstances
of the case.
The order shall issue as soon as practicable but in no event
more than 120 days after filing of the complaint. A schedule
shall not be modified except by leave of the judge or a magistrate
when authorized by district court rule upon a showing of good
cause.
D-2
(c) Subjects to be Discussed at Pretrial Conferences. The par
ticipants at any conference under this rule may consider
and take action with respect to
(1) the formulation and simplification of the issues,
including the elimination of frivolous claims or
defenses;
(2) the necessity or disrability of amendments to the
pleadings;
(3) the possibility of obtaining admissions of fact and
of documents which will avoid unnecessary proof,
stipulations regarding the authenticity of documents,
and advance rulings from the court on the admissibili
ty of evidence;
(4) the avoidance of unnecessary proof and of
cumulative evidence;
(5) the identification of witnesses and documents, the
need and schedule for filing and exchanging pretrial
briefs, and the date or dates for further conferences
and for trial;
(6) the advisability of referring matters to a magistrate
or master;
(7) the possibility of settlement or the use of extra
judicial procedures to resolve the dispute;
(8) the form and substance of the pretrial order;
(9) the disposition of pending motions;
(10) the need for adopting special procedures for
managing potentially difficult or protracted actions
that may involve complex issues, multiple parties, dif
ficult legal questions, or unusual proof problems; and
(11) such other matters, as may aid in the disposition
of the action.
D-3
At least one of the attorneys for each party participating in any
conference before trial shall have authority to enter into stipula
tions and to make admissions regarding all matters that the par
ticipants may reasonably anticipate may be discussed.
(d) Final Pretrial Conference. Any final pretrial conference
shall be held as close to the time of trial as reasonable under
the circumstances. The participants at any such conference
shall formulate a plan for trial, including a program for
facilitating the admission of evidence. The conference shall
be attended by at least one of the attorneys who will con
duct the trial for each of the parties and by any
unrepresented parties.
(e) Pretrial Orders. After any conference held pursuant to
this rule, an order shall be entered reciting the action taken.
This order shall control the subsequent course of the ac
tion unless modified by a subsequent order. The order
following a final pretrial conference shall be modified on
ly to prevent manifest injustice.
(f) Sanctions. If a party’s attorney fails to obey a schedul
ing or pretrial order, or if no appearance is made on behalf
of a party at a scheduling or pretrial conference, or if a
party or party’s attorney is substantially unprepared to par
ticipate in the conference, or if a party or party’s attorney
fails to participate in good faith, the judge, upon motion
or the judge’s own initiative, may make such orders with
regard thereto as are just, and among others any of the
orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of
or in addition to any other sanction, the judge shall require
the party or the attorney representing the party or both
to pay the reasonable expenses incurred because of any non-
compliance with this rule, including attorney’s fees, unless
the judge finds that the noncompliance was substantially
justified or that other circumstances make an award of ex
penses unjust.
D-4
Rule 41. Dismissal of Actions
(a) Voluntary Dismissal: Effect Thereof.
(1) By Plaintiff; by Stipulation. Subject to the provi
sions of Rule 23(e), of Rule 66, and of any statute of
the United States, an action may be dismissed by the
plaintiff without order of court (i) by filing a notice
of dismissal at any time before service by the adverse
party of an answer or of a motion for summary judg
ment, whichever first occurs, or (ii) by filing a stipula
tion of dismissal signed by all parties who have ap
peared in the action. Unless otherwise stated in the
notice of dismissal or stipulation, the dismissal is
without prejudice, except that a notice of dismissal
operates as an adjudication upon the merits when filed
by a plaintiff who has once dismissed in any court of
the United States or of any state an action based on
or including the same claim.
(2) By Order of Court. Except as provided in paragraph
(1) of this subdivision of this rule, an action shall not
be dismissed at the plaintiff s instance save upon order
of the court and upon such terms and conditions as
the court deems proper. If a counterclaim has been
pleaded by a defendant prior to the service upon the
defendant of the plaintiff’s motion to dismiss, the ac
tion shall not be dismissed against the defendant’s ob
jection unless the counterclaim can remain pending
for independent adjudication by the court. Unless
otherwise specified in the order, a dismissal under this
paragraph is without prejudice.
(b) Involuntary Dismissal: Effect Thereof. For failure
of the plaintiff to prosecute or to comply with these
rules or any order of court, a defendant may move
for dismissal of an action or of any claim against the
defendant. After the plaintiff, in an action tried by
the court without a jury, has completed the presen
tation of evidence, the defendant, without waiving
D-5
the right to offer evidence in the event the motion is
not granted, may move for a dismissal on the ground
that upon the facts and the law the plaintiff has shown
no right to relief. The court as trier of the facts may
then determine them and render judgment against the
plaintiff or may decline to render any judgment un
til the close of all the evidence. If the court renders
judgment on the merits against the plaintiff, the court
shall make findings as provided in Rule 52(a). Unless
the court in its order for dismissal otherwise specifies,
a dismissal under this subdivision and any dismissal
not provided for in this rule, other than a dismissal
for lack of jurisdiction, for improper venue, or for
failure to join a part under Rule 19, operates as an
adjudication upon the merits.
(c) Dismissal of Counterclaim, Cross-Claim, or Third-
Party Claim. The provisions of this rule apply to the
dismissal of any counter-claim, cross-claim, or third-
party claim. A voluntary dismissal by the claimant
alone pursuant to paragraph (1) of subdivision (a) of
this rule shall be made before a responsive pleading
is served or, if there is none, before the introduction
of evidence at the trial or hearing.
(d) Costs of Previously Dismissed Action. If a plaintiff
who has once dismissed an action in any court com
mences an action based upon or including the same
claim against the same defendant, the court may make
such order for the payment of costs of the action
previously dismissed as it may deem proper and may
stay the proceedings in the action until the plaintiff
has complied with the order.
D-6
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
ORDER ADOPTING DISCIPLINARY RULES
The attached rules of disciplinary procedure are adopted,
effective October 1, 1980, to govern professional conduct of
attorneys appearing in this court. The Clerk is directed to main
tain a copy of these disciplinary rules available for public
inspection in each of his offices, and to provide copies to
attorneys free of charge upon request.
SO ORDERED.
This 29th day of August, 1980.
Is/
F.T. D UPREE, JR .”
C H IE F UNITED STATES D ISTRICT JU D G E
Is/
W. EA RL BRITT
UNITED STATES D ISTRICT JUD G E
Isl ___________________________________
JOHN D. LARKINS, JR.
SENIOR UNITED STATES DISTRICT JU D G E
VI. RULES OF DISCIPLINARY PROCEDURE
RULE 100.00 ADOPTION OF DISCIPLINARY
RULES
RU LE 101.00 ATTORNEYS CO NVICTED OF
CRIM ES
101.01 Filing of Judgment of Conviction
101.02 Definition of “Serious Crime”
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101.03
101.04
101.05
101.06
RU LE 102.00
102.01
102.02
102.03
102.04
102.05
102.06
RU LE 103.00
Certified Copy of Judgm ent Conclusive
Evidence
Suspension and Referral
Conviction of Non-Serious Crime
Reinstatement
D ISC IPLIN E IM POSED BY OTHER
COURTS
Duty to Inform This Court
Notice to Attorney
Deferral of Action
Imposition of Discipline
Effect of Final Adjudication
Appointment of Counsel
DISBARM ENT ON CO NSENT OR
RESIGNATION IN OTHER
COURTS
103.01 Cease To Practice in This Court
103.02 Duty To Inform Clerk
RU LE 104.00 STANDARDS FOR PROFESSIONAL
CO NDUCT
RULE
104.01 Form of Discipline
104.02 Grounds for Discipline
105.00 DISCIPLINARY PRO CEED IN G S
105.01 Referral by the Court
105.02 Recommendation for Disposition
105.03 Initiation of Disciplinary Proceedings
105.04 Procedure for Hearing
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RULE 106.00 DISBARM ENT ON CONSENT
W H ILE UNDER DISCIPLINARY
INVESTIGATION OR
PROSECUTION
106.01 Filing of Affidavit, Contents
106.02 Order of Disbarment
RULE 107.00 REINSTATEMENT
107.01 After Suspension or Disbarment
107.02 Time of Application Following
Disbarment
107.03 Hearing on Application
107.04 Duty of Counsel
107.05 Deposit for Costs of Proceeding
107.06 Conditions of Reinstatement
107.07 Successive Petitions
RULE 108.00 SERVICE O F PAPERS AND OTHER
NOTICES
RULE 109.00 APPOINTMENT O F CO UNSEL
RULE 110.00 D U TIES O F THE C LER K
110.01 To Secure Certificate of Conviction
110.02 To Secure Disciplinary Judgment or
Order
110.03 Transmittal to Other Jurisdictions
110.04 National Discipline D ata Bank
RULE 111.00 PUBLICITY
RULE 112.00 JU RISD ICTIO N
RULE 113.00 to 120.00: Reserved for future purposes
E-3
VI. RULES OF DISCIPLINARY PROCEDURE
RULE 100.00 ADOPTION OF DISCIPLINARY RULES.
The United States District Court for the Eastern District of
North Carolina, in furtherance of its inherent power and respon
sibility to supervise the conduct of attorneys who are admitted
to practice before it, or admitted for the purpose of a particular
proceeding (pro hac vice), has adopted the following Rules of
Disciplinary Procedure.
RULE 101.00 ATTORNEYS CONVICTED OF CRIMES.
101.01: Filing of Judgment of Conviction. Upon the filing with
the clerk of a certified copy of a judgment of conviction stating
that an attorney admitted to practice before the court has been
convicted in any Court of the United States, or the District of
Columbia, or of any state, territory, commonwealth or posses
sion of the United States of a serious crime as hereinafter defined,
this court shall enter an order immediately suspending that at
torney, whether the conviction resulted from a plea of guilty,
of nolo contendere or from a verdict after trial or otherwise,
and regardless of the pendency of any appeal, until final disposi
tion of a disciplinary proceeding to be commenced in accord
with the provision of Rule 101.04. A copy of such order shall
immediately be served upon the attorney. Upon good cause
shown, the court may set aside such order when it appears in
the interest of justice to do so.
101.02: Definition of “Serious Crime.” The term “serious crime”
shall include any felony and any lesser crime a necessary ele
ment of which, as determined by the statutory or common law
definition of such crime in the jurisdiction where the judgment
was entered, involves false swearing, misrepresentation, fraud,
willful failure to file income tax returns, deceit, bribery, extor
tion, misappropriation, theft, or an attempt or a conspiracy or
solicitation of another to commit a “serious crime.”
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101.03: Certified Copy of Judgment Conclusive Evidence. A
certified copy of a judgment of conviction of an attorney for
any crime shall be conclusive evidence of the commission of that
crime in any disciplinary proceeding instituted against that at
torney based upon such conviction.
101.04: Suspension and Referral. Upon the filing with the clerk
a certified copy of a judgment of conviction of an attorney for
a serious crime, the court shall in addition to suspending that
attorney in accordance with the provisions of Rule 101.01, also
refer the matter to counsel for the institution of a disciplinary
proceeding before the court in which the sole issue to be
determined shall be the extent of the final discipline to be im
posed as a result of the conduct resulting in the conviction, pro
vided that a disciplinary proceeding so instituted will not be
brought to final hearing until all appeals from the conviction
are concluded.
101.05: Conviction of Non-Serious Crime. Upon the filing with
the clerk of a certified copy of a judgment of conviction of an
attorney for a crime not constituting a “serious crime,” the court
may refer the matter to counsel for whatever action counsel may
deem warranted, including the institution of a disciplinary pro
ceeding before the court; provided, however, that the court may
in its discretion make no referral with respect to convictions for
minor offenses.
101.06: Reinstatement. An attorney suspended under the pro
visions of this Rule 101.00 will be reinstated immediately upon
the filing with the clerk of a certificate demonstrating that the
underlying conviction crime has been reversed but the reinstate
ment will not terminate any disciplinary proceeding then pen
ding against the attorney, the disposition of which shall be deter
mined by the court on the basis of all available evidence per
taining to both guilt and the extent of discipline to be imposed.
RULE 102.00 DISCIPLINE IMPOSED BY OTHER COURTS.
102.01: Duty to Inform This Court. Any attorney admitted
to practice before this court shall, upon being subjected to public
E-5
discipline by any other court or administrative body of the
United States or the District of Columbia, or by a court or ad
ministrative body (or state agency clothed with disciplinary
authority), of any state, territory, commonwealth or possession
of the United States, promptly inform the clerk of this court
of such action.
102.02: Notice to Attorney. Upon the filing with the clerk of
a certified or exemplified copy of a judgment or order
demonstrating that an attorney admitted to practice before this
court has been disciplined by another court or administrative
body (or state agency clothed with disciplinary authority), this
court shall forthwith issue a notice directed to the attorney
containing:
(a) a copy of the judgment or order from the other court
or administrative body (or state agency clothed with
disciplinary authority); and,
(b) an order to show cause directing that the attorney
inform this court within 30 days after service of that
order upon the attorney, personally or by mail, of any
claim by the attorney predicated upon the grounds set forth
in Rule 102.04 that the imposition of the indentical
discipline by the court would be unwarranted and the
reasons therefor.
102.03: Deferral of Action. In the event the discipline imposed
in the other jurisdiction has been stayed there, any reciprocal
discipline imposed in this court shall be deferred until such stay
expires.
102.04: Imposition of Discipline. Upon the expiration of 30
days from service of the notice issued pursuant to Rule 102.02
this court shall impose the identical discipline unless the
respondent-attorney demonstrates, or this court finds, that upon
the face of the record upon which the discipline in another
jurisdiction is predicated it clearly appears:
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(a) that the procedure was so lacking in notice or op
portunity to be heard as to constitute a deprivation of due
process; or
(b) that there was such an infirmity of proof establishing
the misconduct as to give rise to the clear conviction that
this court could not, consistent with its duty, accept as final
the conclusion on that subject; or
(c) that the imposition of the same discipline by this court
would result in grave injustice; or
(d) that the misconduct established is deemed by this
court to warrant substantially different discipline.
Where this court determines that any of said elements exist, it
shall enter such other order as it deems appropriate.
102.05: Effect of Final Adjudication. In all other respects, a final
adjudication in another court or administrative body (or state
agency clothed with disciplinary authority) that an attorney has
been guilty of misconduct shall establish conclusively the miscon
duct for purposes of a disciplinary proceeding in this court.
102.06: Appointment of Counsel. This court may at any stage
appoint counsel to prosecute the disciplinary proceedings.
RULE 103.00 DISBARMENT ON CONSENT OR RESIGNA
TION IN OTHER COURTS.
103.01: Cease to Practice In This Court. Any attorney admitted
to practice before this court who shall be disbarred by consent
or resign from the bar of any other Court of the United States
or the District of Columbia, or from the Bar of any state, ter
ritory, commonwealth or possession of the United States while
an investigation into allegations of misconduct is pending, shall,
upon the filing with the clerk of a certified or exemplified copy
of the judgment or order accepting such disbarment by con
sent or resignation, cease to be permitted to practice before this
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court and be stricken from the roll of attorneys admitted to prac
tice before this court.
103.02: Duty to Inform Clerk. Any attorney admitted to prac
tice before this court shall, upon being disbarred on consent or
resigning from the bar of any other court of the United States
or the District of Columbia, or from the bar of any state, ter
ritory, commonwealth or possession of the United States while
an investigation into allegations of misconduct is pending,
promptly inform the clerk of such disbarment by consent or
resignation.
RULE 104.00 STANDARDS FOR PROFESSIONAL CONDUCT.
104.01: Forms of Discipline. For misconduct defined in these
Rules, and for good cause shown, and after notice and oppor
tunity to be heard, any attorney admitted to practice before this
court may be disbarred, suspended from practice before this
court, reprimanded or subjected to such other disciplinary ac
tion as the circumstances may warrant.
104.02: Grounds for Discipline. Acts or omissions by an at
torney admitted to practice before this court, individually or
in concert with any other person or persons, which violate the
Code of Professional Responsibility adopted by this court shall
constitute misconduct and shall be grounds for discipline,
whether or not the act or omission occurred in the course of
an attorney-client relationship. The Code of Professional Respon
sibility adopted by this court is The North Carolina State Bar
Code of Professional Responsibility adopted by The Supreme
Court of North Carolina, except as may be otherwise provided
by specific Rule of this court.
RULE 105.00 DISCIPLINARY PROCEEDINGS.
105.01: Referral By The Court. When misconduct or allegations
of misconduct on the part of an attorney admitted to practice
before this court which, if substantiated, would warrant discip
line of such attorney shall come to the attention of a judge of
this court, whether by complaint or otherwise, and the applicable
E-8
procedure is not otherwise mandated by these Rules, the judge
shall refer the matter to counsel for investigation and if warranted
the prosecution of a formal disciplinary proceeding or the the for
mulation of such other recommendation as may be appropriate.
105.02: Recommendation for Disposition. Should counsel con
clude after investigation and review that a formal disciplinary
proceeding should not be initiated against the respondent-
attorney because sufficient evidence is not present, or because
there is pending another proceeding against the respondent-
attorney, the disposition of which in the judgment of the counsel
should be awaited before further action by this court is con
sidered or for any other valid reason, counsel shall file with the
court a recommendation for disposition of the matter, whether
by dismissal, admonition, deferral, or otherwise, setting forth
the reasons therefor.
105.03: Initiation of Disciplinary Proceedings. To initiate for
mal disciplinary proceedings, counsel shall obtain an order of
this court upon a showing of probable cause requiring the
respondent-attorney to show cause within 30 days after service
of that order upon that attorney, personally or by mail, why
the attorney should not be disciplined.
105.04: Procedure for Hearing. Upon the respondent-attorney’s
answer to the order to show cause, if any issue of fact is raised
or the respondent-attorney wishes to be heard in mitigation this
court shall set the matter for prompt hearing before one or more
judges of this court, provided however that if the disciplinary
proceeding is predicated upon the complaint of a judge of this
court the hearing shall be conducted before another judge of
this court appointed by the Chief Judge, or if the Chief Judge
is the complainant, by the next senior judge of this court.
RULE 106.00 DISBARMENT ON CONSENT W HILE
UNDER DISCIPLINARY INVESTIGATION
OR PROSECUTION.
106.01: Filing of Affidavit, Contents. Any attorney admitted
to practice before this court who is the subject of an investigation
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into, or a pending proceeding involving, allegations of miscon
duct may consent to disbarment, but only by filing with the
clerk an affidavit stating that the attorney desires to consent to
disbarment and that:
(a) the attorney’s consent is freely and voluntarily
rendered, the attorney is not being subjected to coercion
or duress, and the attorney is fully aware of the implica
tions of so consenting;
(b) the attorney is aware that there is a presently
pending investigation or proceeding involving allegations
and that there exist grounds for the discipline of the at
torney the nature of which the attorney shall specifically
set forth;
(c) the attorney acknowledges that the material facts so
alleged are true; and,
(d) the attorney so consents because the attorney knows
that if charges were predicated upon the matters under in
vestigation, or if the proceeding were prosecuted, the at
torney could not successfully defend himself.
106.02: Order of Disbarment. Upon the filing of the required
affidavit, the court shall enter an order disbarring the attorney.
The order disbarring the attorney on consent shall be a matter
of public record. However, such affidavit shall not be publicly
disclosed or made available for use in any other proceeding ex
cept upon order of the court.
RULE 107.00 REINSTATEMENT
RULE 107.01: After Suspension or Disbarment. An attorney who
has been suspended shall be automatically reinstated at the end
of the period of suspension upon filing an affidavit of compliance
with the provisions of the order of suspension. An attorney who
has been disbarred may not resume practice until reinstated by
order of this court.
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107.02: Time of Application Following Disbarment. An at
torney who has been disbarred after hearing or by consent may
not apply for reinstatement until the expiration of at least 3 years
from the effective date of the disbarment.
107.03: Hearing on Application. Petitions for reinstatement
by a disbarred attorney shall be filed with the Chief Judge of
this court. Upon receipt of the petition, the Chief Judge shall
promptly refer the petition to counsel and shall assign the m at
ter for a hearing before one or more judges of this court, pro
vided however that if the disciplinary proceeding was predicated
upon the complaint of a judge of this court the hearing shall
be conducted before another judge of this court appointed by
the Chief Judge, or, if the Chief Judge was the complainant,
by the next senior judge of this court. The judge assigned to the
matter shall within 30 days after referral hold a hearing at which
the petitioner shall have the burden of demonstrating by clear
and convincing evidence that the petitioner has the moral
qualifications, competency and learning in the law required for
admission to practice law before this court and that the resump
tion of the practice of law by the petitioner will not be detrimen
tal to the integrity and standing of the bar or to the administra
tion of justice, or subversive of the public interest.
107.04: Duty of Counsel. In all proceedings upon a petition
for reinstatement, cross-examination of the witnesses of the
respondent-attorney and the submission of evidence, if any, in
opposition to the petition shall be conducted by counsel.
107.05: Deposit for Costs of Proceeding. Petitions for reinstate
ment shall be accompanied by an advance cost deposit in an
amount to be set from time to time by the court to cover an
ticipated costs of the reinstatement proceeding.
107.06: Conditions of Reinstatement. If the petitioner is found
unfit to resume the practice of law, the petition shall be dis
missed. If the petitioner is found fit to resume the practice of
law, the judgment shall reinstate him, provided that the judg
ment may make reinstatement conditional upon the payment
of all or part of the costs of the proceedings, and upon the
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making of partial or complete restitution to parties harmed by
the petitioner.
107.07: Successive Petitions. No petition for reinstatement shall
be filed within 1 year following an adverse judgment upon a
petition for reinstatement by or on behalf of the same person.
RULE 108.00 SERVICE OF PAPERS AND OTHER NOTICES.
Service of an order to show cause instituting a formal
disciplinary proceeding shall be made by personal service or by
registered or certified mail addressed to the respondent-attorney
at the address shown in the most recent registration filed pur
suant to N.C.G.S. §84-34, or, in the case of an attorney admit
ted to this court pursuant to Local Rule 2.05, at the address
shown in papers filed with the court. Service of any other papers
or notices required by these Rules of Disciplinary Procedure shall
be deemed to have been made if such paper or notice is addressed
to the respondent-attorney at the address determined as
aforesaid; or to counsel or the attorney for the respondent at
the address indicated in the most recent pleading or other docu
ment filed by the respondent.
RULE 109.00 APPOINTMENT OF COUNSEL.
Whenever counsel is to be appointed to investigate allegations
of misconduct or prosecute disciplinary proceedings or in con
junction with a reinstatement petition filed by a disbarred at
torney, this court shall appoint as counsel the duly appointed
counsel of The Council of The North Carolina State Bar, Inc.
If said counsel declines appointment, or such appointment is
clearly inappropriate, the court shall appoint as counsel one or
more members of the bar of this court to investigate the allega
tions of misconduct or to prosecute disciplinary proceedings
under these Rules, provided, however, that the respondent-
attorney may move to disqualify an attorney so appointed who
is or has been engaged as an adversary of the respondent-attorney
in any matter. Counsel, once appointed, may not resign unless
permission to do so in given by the court.
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RULE 110.00 DUTIES OF TH E CLERK.
110.01: To Secure Certificate of Conviction. Upon being in
formed that an attorney admitted to practice before this court
has been convicted of any serious crime, the clerk shall deter
mine whether the clerk of the court (or the state agency clothed
with disciplinary authority) in which such conviction occurred
has forwarded a certificate of such conviction to this court. If
a certificate has not been so forwarded, the clerk shall promptly
obtain a certification and cause it to be filed in this court.
110.02: To Secure Disciplinary Judgment or Order. Upon be
ing informed that an attorney admitted to practice before this
court has been subjected to discipline by another court, or by
an administrative body(or by a state agency clothed with
disciplinary authority), the clerk shall determine whether a cer
tified or exemplified copy of the disciplinary judgment or order
has been filed with this court, and, if not, the clerk shall
promptly obtain a certified or exemplified copy of the
disciplinary judgment or order and cause it to be filed in this
court.
110.03: Transmittal to Other Jurisdictions. Whenever it ap
pears that any person convicted of any serious crime, disbarred,
suspended, censured or disbarred on consent by this court is ad
mitted to practice law in any other jurisdiction or before any
other court, the clerk shall, within 10 days of that conviction,
disbarment, suspension, censure, or disbarment on consent,
transmit to the disciplinary authority in such other jurisdiction,
or for such other court, a certificate of the conviction or a cer
tified exemplified copy of the judgment or order of disbarment,
suspension, censure, or disbarment on consent, as well as the
last known office and residence addresses of the defendant or
respondent.
110.04: National Discipline Data Bank. The clerk shall, notify
the National Discipline D ata Bank operated by the American
Bar Association of any order of this court imposing public
discipline upon any attorney admitted to practice before this
court.
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RULE 111.00 PUBLICITY.
All parties in a disciplinary proceeding shall conduct them
selves in accord with the provisions of Local Rules 7.00 and
45.00.
RULE 112.00 JURISDICTION.
Nothing contained in these Rules shall be construed to deny
to this court such powers as are necessary for the court to main
tain control over proceedings conducted before it, such as pro
ceedings for contempt under Title 18 of the United States Code
or under Rule 42, F.R. Grim. P.
RULES 113.00 to 120.00 Reserved for Future Purposes
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COM M ITTEE ON RULES OF PRACTICE AND PROCEDURE
OF THE
JUDICIAL CO NFERENCE OF TH E UNITED STATES
WASHINGTON, D.C. 20544
Chairmen of Advisory
Committees
Walter R. Mansfield
Civil Rules
Walter E. Hoffman
Criminal Rules
Robert A. Ainsworth, Jr,
Appellate Rules
Ruggero J. Aldisert
Bankruptcy Rules
December 21, 1981
To: Members of the Advisory Committee on
Federal Civil Rules
cc: Hon. Edw ard T. Gignoux
Re: Committee Meeting on Jan. 7-8, 1982
In preparation for the above meeting I enclose a loose-leaf
folder containing for each of our major proposed rule changes
(Rules 4, 45, 7, 11, 16, 26, 52 and 67):
(1) An analysis by Prof. Miller and myself of the
comments received with respect to the rule;
(2) Any suggested changes in our draft rule and in
our Advisory Committee Note that seemed advisable
to Prof. Miller and myself in light of comments re
ceived with respect to it. For your convenience these
have been incorporated in a cut-and-paste version of
our Preliminary Draft which shows the suggested
changes at appropriate intervals; and
(3) A digest of the substance of each of the com
ments (oral and written) received.
Edw ard T. Gignoux
Chairman
Joseph F. Spaniol, Jr.
Secretary
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In view of the large volume of individual comments, reports
and the oral statements at our Washington, DC, and Los Angeles
hearings, all of which have been distributed, you may find it
more convenient first to study the data enclosed herewith. If
each Committee member does his homework, I am confident
that we will make satisfactory progress at our meeting, which
is expected to last for two full days.
Our tentative agenda is to take up each of the rules in the
order indicated in the attached folder. We must submit to the
Standing Rules Committee by mid-January our final recom
mended changes in Rules 4 and 45 so that it can take action
as [sic] its scheduled January 28, 1981, meeting. Although the
balance of our proposed changes need not be submitted to that
Committee until late winter or early spring, it would greatly
facilitate our work if we were able to reach agreement on
substantially all of the proposals at our January meeting, which
might enable us to distribute further drafts and reach a con
sensus without an additional meeting.
In short, the progress we make at our January 7-8 meeting
depends on your doing the necessary advance preparation work,
as I know you will.
A Merry Christmas and a Happy New Year to you all!
Is/ Walter R. Mansfield
F-2
ADVISORY COM M ITTEE ON CIVIL RULES
Analysis of Comments Received Re: Proposed Rule 16
Of 45 comments received only 8 were against making any
changes in Rule 16. The opponents reasoned that the proposed
new rule was unnecessary, that it would lead to “paper trials,”
greatly increasing the cost of litigation and burdens on the court
without any showing of need or benefits, that early judicial in
volvement would not be helpful, that the provision for sanc
tions is too vague, and that judges would be forced to inquire
into confidential attorney-client relationships, with resulting
satellite litigation. The balance of those commenting, which con
stitutes an overwhelming majority, either expressly favor the
substance of the new rule or imply that they would approve it
if certain changes were made.
The three areas of most concern were (1) the impression gained
by many from the draft and our ACN that scheduling con
ferences and pretrial conferences would be mandatory; (2) the
provision in 16(b) that a scheduling order must issue no later
than 90 days after filing of the complaint, and (3) the re
quirements of 16(b) and (f) that only a judge, not a magistrate,
may issue a scheduling order and impose sanctions.
With respect to the first of the above three matters, many per
sons simply assume the rule to require that a scheduling con
ference must be held, despite our deliberate and careful use of
the word “consultation” instead of “conference” in 16(b) (p. 10,
line 14) and our ACN statement (p. 16, lines 16-18) that “a
scheduling order must be issued. . .after some communication
with the parties, which may be by telephone or mail rather than
in person.” From the number of comments construing the rule
as mandating scheduling orders and conferences some clarifica
tion is obviously needed. We suggest a more explicit clarifying
statement in the rule as follows:
“ (b) SCH ED U LIN G AND PLANNING:
Except in categories of actions exempted by district
court rule as inappropriate the judge, after com
municating with the parties, either by a scheduling
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conference, telephone, mail or other suitable facility,
shall enter a scheduling order that limits the time. . .
Such a statement would make it crystal clear that a schedul
ing conference may be called by the judge but is not mandated.
However, the references in our ACN at the bottom of page 15
and top of page 16 to “scheduling conference and order,”
“ scheduling conferences and orders,” and “mandatory schedul
ing conference or scheduling order” could be construed as im
plying that the judge is expected to hold a scheduling conference
in every case, followed by the entry' of a scheduling order.
Similarly the wording of the second full paragraph of the ACN
on page 16 suggests that a scheduling conference is expected to
be held but that if by some chance it is not arranged within
the 90-day period a scheduling order must nevertheless be
entered after some communication by the judge with the par
ties. Although the ACN should encourage the use of scheduling
conferences as the preferable method in an appropriate case for
putting the case on a more efficient and less costly course by
eliminating deadwood, establishing some order and limitations
with respect to discovery and motions, there are undoubtedly
many run-of-the-mill, relatively simple cases where a schedul
ing conference or even a pretrial conference (except on the eve
of trial) would be wasteful and costly.
To eliminate any misapprehension, and make clear that
scheduling conferences are not mandated, we recommend amen
ding our ACN at the bottom of page 15, third line from the bot-
ton, to eliminate the words “conference and” and eliminate the
words “conference and” from the last line, so that the phrases
would read “scheduling order” and “scheduling orders,” respec
tively. At page 16, line 3, also eliminate “scheduling conference
and” so that it would read “mandatory scheduling order.”
At least 9 or 10 persons, assuming that a pretrial conference
(as distinguished from a scheduling conference) is also man
datory under our draft rule, argue in favor or making it per
missive or discretionary. Their principal argument is that such
conferences may be fruitful in complex cases but would be
wasteful and develop into minitrials in smaller cases. A few take
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the now generally outmoded view that if the parties do not want
to get a case to trial the court ought not to force them to do
so. One judge notes that his pretrial conferences are often han
dled by his clerks and that if he personally held such a conference
in every case he would not have enough time to conduct trials.
Our draft rule was designed to encourage greater use of
pretrial conferences wherever appropriate, in view of the F JC ’s
study of five metropolitan districts showing that early judicial
assumption of control produced more prompt and efficient final
dispositions, but not to m andate them. Since the rule and ACN
are being construed by some as mandating pretrial conferences
as well as scheduling conferences, we recommend a more direct
statement in the ACN of the rule’s purpose and our interpreta
tion of it. Perhaps the best place for such a brief statement would
be on page 15 of the ACN, immediately before the heading
“Discussion.” We also suggest that we move to this point the state
ment in the ACN presently found at page 18, lines 7-13, which
provides support for the rule generally rather than just for sub
division (c).
Turning to our provision in Rule 16(b) that a scheduling order
must issue with [sic] 90 days after filing of the complaint, ap
proximately 12 persons protest that this period is so short as to
be unrealistic after taking into account that in some cases service
will not be made and an answer filed for more than 90 days,
thus precluding the judge at this premature stage from fixing
sensible time limits for discovery and motions. Some alternatives
suggested by them: (1) 90 days after filing of the answer, which
must be filed within 90 days after filing of the complaint; (2)
120-150 days after filing of complaint; (3) as soon as practicable
after filing of the answer provided that, if the answer is filed
more than 90 days after filing of the complaint, the scheduling
order shall be filed within 20 days thereafter. Here, as in fixing
time limits for completion of service under Rule 4, we recom
mend employing a fixed time limit rather than by indirection
extend the existing time limits fixed by Rules 12 and 13 for fil
ing of answers, counterclaims, cross-claims and third-party
claims. We favor extending the cut-off date to 120 days after
filing of the summons and complaint.
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One person suggests that our draft’s description of the schedul
ing order at page 11, line 18, as limiting the time “ (2) to serve
and hear motions” be changed to “ (2) to file motions” since the
court would not want to impose time limits on its own deter
mination of the most cases. We disagree. Part of the philosophy
behind the mandatory scheduling order is to induce judges to
take hold of cases sooner and push them along. We suggest
changing it to read “ (2) file and hear motions.”
The National Ass’n of U.S. Magistrates and the Magistrates
Committee of the Judicial Conference both strongly object to
the use of “ judge” instead of “court” in our draft’s provisions
in Rule 16(b) that the judge shall issue a scheduling order and
in 16(f) that the judge may impose sanctions. They even go so
far as to suggest that the effect of these provisions will be to
destroy the magistrate’s role and overburden federal judges in
the handling of pretrial matters. This is an overreaction ap
parently based on a misreading of the proposed rule. Although
the rule obligates the judge to issue the scheduling order, nothing
precludes the judge from thereafter delegating to a magistrate
any of the numerous pretrial duties presently handled by
magistrates in some districts, including hearing and rulings on
non-dispositive matters (e.g., discovery), hearings and recom
mendations on dispositive matters (e.g., summary judgment),
handling of prisoners’ habeas corpus petitions, and of course
consensual trials under 28 U.S.C. §636(c). Sanctions cannot now
be imposed by a magistrate who at most can recommend sanc
tions to the judge.
We recommend that in view of the magistrates’ misreading
of the proposed rule we spell out the above in the ACN. When
it comes to the issuance of a scheduling order and the imposi
tion of sanctions, however, we believe strongly that we should
remain resolute. While the magistrates’ desire to increase their
already-enlarged powers is understandable, the entire purpose
of our draft Rule 16, which is to reduce cost and delay through
early judicial management of litigation, will be frustrated if
judges are permitted to transfer all of these management duties
from the outset to a magistrate. Except for the few consensual
trials to be held before a magistrate, every unsettled case is go
ing to be tried before a judge, not a magistrate. With due respect
for the enormous powers granted to magistrates, every lawyer
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knows that except as to some procedural matters the judge must
make the vital decisions that will mean the difference in inducing
the parties to act promptly in settling or trying a case. When
the judge, who is correctly viewed by counsel as knowing his
own calendar and capabilities better than a magistrate, fixes
limits for motions, discovery and trial, counsel and the parties
pay his order more respect than they would to that of a
magistrate, from whom an appeal can always be taken to the
judge. Moreover the magistrate, unlike the judge, cannot dismiss
claims or defenses, much less assess expenses or penalties for
violation of Rule 16’s provisions.
For these reasons, while we should be willing to assure the
magistrates that their functions will be very much alive and not
destroyed by our proposed Rule 16, we should also make clear
that the prompt disposition of litigation depends on early and
frequent direct intervention by the judge.
The other comments received regarding proposed Rule 16 are
relatively minor, including the following:
(1) Preclude a judge from holding a pretrial con
ference sua sponte by inserting at page 10, line 2, in
lieu of the words “the court may” the words “the court
upon motion of any party shall”. This suggestion is
somewhere right of Pres. McKinley. Not even the rule
adopted in 1938 deprives the judge of the right, which
he should have, of goosing the parties into action by
himself calling a conference.
(2) Omit the proposed authority in Rule 16(b), page
10, lines 12-14, to district courts to exempt by rule cer
tain types of cases (eg., social security, habeas cor
pus) from scheduling conferences or orders. We are
unpersuaded by the argument that this would lead
to distortion and harmful variations between districts.
(3) Make the entry of a scheduling order (16(b)) and
other pretrial orders (16(e)) discretionary rather than
mandatory. This would emasculate the rule. If the
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system is going to work, written or recorded orders
are essential.
(4) Dispense with the itemization in 16(c) of sub
jects that may be discussed at pre-trial conferences and
substitute a general statement of the type now in Rule
16. We disagree. The “laundry list” is a useful orien
tation to judges and counsel.
(5) Strengthen the word “consider” at the outset of
16(c), page 11, line 32, since the ACN at page 18 (2d
full paragraph) states that the court may under
16(c)(1) eliminate frivolous claims, not merely con
sider them, without waiting for a formal motion for
summary judgment. One person urges that the rule
should expressly give the judge power to grant sum
mary judgment without a written motion.
We recommend changing the language at page 11,
line 32, to read “consider and take action with respect
to”. As long as a record is made (preferably by court
reporter who will register the material facts not
disputed) this should permit a judge to grant an oral
motion to dismiss at a pretrial conference.
(6) Add an explicit reference in 16(c) to obtaining
advance rulings from the court on the admissibility
of evidence and stipulations as to the authenticity of
documents.
We suggest 16(c)(3) be changed to read “ (3) the
possibility of obtaining advance rulings from the court
on the admissibility of evidence, admissions of fact,
and stipulations regarding the authenticity of
documents;”.
(7) Insert in 16(c)(10), page 12, line 54, just before
the word “complex” the words “evidence of ex
periments, including surveys, specially conducted for
or in contemplation of litigation”. This is apparently
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a common practice in patent litigation. We have no
objection.
(8) Add to the end of 16(d), page 13, line 68, the
words “and by any unrepresented parties.” We have
no objection. The section presently is limited to
attorneys.
(9) At the end of 16(c), page 12, line 59, change
“shall” to “must”. We agree that “must” is more
appropriate.
(10) Resolve the apparent inconsistency between our
draft 16(e), which directs that the pretrial order “shall
control the subsequent course of the action” and be
changed only “to prevent manifest injustice”, with pre
sent Rule 15(b) which authorizes such amendments
of pleadings during the trial as are necessary to cause
them to conform to the evidence.
Since a pretrial order governs the trial, there is no
inconsistency. See Wright and Miller, 6 Federal Prac
tice and Procedure §1527 (1971).
(11) Resolve the apparent conflict between proposed
16(c)(6), page 12, lines 45-46, which provides for
discussion at a pretrial conference of the “advisabili
ty of reference of matters to a magistrate” with pro
posed 73(b), page 41, lines 16-21, which (as required
by 28 U.S.C. §636(c)) prohibits a judge from per
suading or inducing a party “to consent to a reference
of a civil matter to a magistrate under this rule” or
even from being informed of parties’ responses to the
clerk’s notice.
We suggest a statement in our ACN to Rule 16 that
16(c)(6) refers to matters other than consensual trials
under §636(c). The purpose of the latter statute is to
prevent a judge from forcing parties to consent to trial
of an entire case before a magistrate rather than to
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the judge. But Rule 16 deals with the numerous other matters
which a judge may under §636(b) refer to a magistrate without
the parties’ consent.
(12) Clarify that under 16(c) (7) parties are not compelled to
discuss settlement with the judge assigned to try the case.
We believe this is made sufficiently clear by our ACN at page
19, lines 2-4. If the parties all want to discuss settlement with
the trial judge if he is agreeable, they should not be barred from
doing so. Otherwise he should not impose discussions on un
willing litigants except to the extent of referring this aspect to
a neutral third party such as a different judge.
(13) Delete 16(f) (sanctions) and incorporate in one separate
sanctions rule for 7, 11, 16, 26(g), 37.
We have already indicated our objections to this proposal in
our analysis of the sanctions provisions of Rules 7 and 11. Con
centration of sanctions in one rule would dilute the deterrence
value of express provisions in locations most likely to be con
sulted by the average practising lawyer. Also, since the standards
differ as between some of these rules, the tests for determining
whether a violation occurred will differ.
(14) In the sanctions subdivision, 16(f) at page 13, line 78,
add after “conference” the phrase “with respect to any matter
which the particiants may reasonably anticipate may be dis
missed.”
We have no objection to the proposal, which reiterates the
phrase previously used in 16(c) at page 12, lines 60-61.
(15) Make sanctions completely discretionary by changing
“shall” at page 13, line 82, to “may.” We disagree and favor a
sanctions provision that would parallel whatever we eventual
ly adopt for Rules 7, 11 and 26(g).
In our proposed 16(f), unlike our sanctions provisions in Rules
7, 11 and 26(g), we followed the format of Rule 37(b)(2) except
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to leave open to the court the discretionary power to impose
sanctions greater than those specified in Rule 37 (b) (2). As we
indicated in the analysis of 7 and 11 we believe we should make
all sanctions mandatory but draw a distinction between an
award of reasonable expenses, including attorneys’ fees, and
penalties, which should be imposable for willful or egregious
conduct. Indeed, one reason for judicial reluctance to impose
Rule 37(b)(2) sanctions may be its failure to mandate any sanc
tion for a violation, even expenses, which though mandatory
in form is discretionary in substance, merely shifting to the of
fending party the duty of showing justification for the viola
tion, whatever that means.
(16) Delete from 16(f) at page 13, lines 78-79, the provision
for imposition of sanctions “ if a party or a party’s attorney fails
to participate in good faith.”
The American College argues that in the absence of a reliable
definition this provision can be mischievous, giving a judge the
power to impose sanctions for refusal to settle or stipulate to
admissions considered unreasonable, despite our ACN statement
to the contrary, and that the provision would have a chilling
effect.
We do not see how, if sanctions are to be a useful deterrent
against current delay and wasteful practices on the part of
counsel, we can avoid requiring the judge to determine in cer
tain cases whether the conduct was willful and in bad faith.
However, if, as we would prefer, we require greater proof of
willfulness before sanctions other than reasonable expenses may
be imposed, we would be happier. In short we are against the
suggested deletion.
(17) Amplify 16(f) to permit sanctioning of an unrepresented
party. We think this is already covered by the repeated reference
to a “party” in the draft. However, we have no objection to an
appropriate reference in the ACN.
(18) Change “advising” to “representing” at page 13, line 83.
We have no objection.
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Conclusion
The only major changes we would favor are (1) changing the
language of 16(b) and the ACN to make clear that while a
scheduling order is mandatory, scheduling conferences and
pretrial conferences, while useful and advocated in appropriate
cases, are not mandatory, (2) extending the 90-day limit in 16(b)
to 120 days, (3) clarifying in the ACN that except for schedul
ing orders and imposition of sanctions a broad range of activities
remain for delegation to U.S. magistrates, and (4) rewriting the
16(f) sanctions provision to accord with Rules 7, 11, and 26(g).
If these plus a few minor changes are made, we can have a
rule ready for recommendation to the Standing Committee
without further hearings or submissions to bench and bar.
W.R.M.
A.R.M.
12/21/81
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CERTIFICATE OF SERVICE
I certify that I have today caused two copies of the attached
brief for appellants Julius L. Chambers and Ferguson, Stein,
Watt, Wallas & Adkins, P.A. to be served, together with a copy
of the appellants’ Appendix, upon the following counsel by the
methods indicated below.
Dated: New York, New York
October 14, 1989
T h o m a s M . B o n d y , E s q .
U.S. Department of Justice
Civil Division,
Appellate Staff
Room 3617
Washington, D.C. 20530
(by Federal Express)
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