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

Blue v. US Department of the Army Brief of Appellants Julius L. Chambers and Ferguson, Stein, Watt, Wallas & Adkins, P.A. preview

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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

A-l



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

C-l



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”

E-l



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

E-2



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.”

E-4



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:

E-6



(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

E-7



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

E-9



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

E-ll



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.

E-13



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

E-14



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

F-l



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

F-3



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

F-4



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.

F-5



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

F-6



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

F-7



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

F-8



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

F-9



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

F-10



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.

F-ll



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

F-12



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)

P r o f . G e o r g e  C o c h r a n  
University of Mississippi 
Faculty-Law Center 
Grove Loop
University, Mississippi 38677 

(by Federal Express)

A d a m  S t e i n , E s q .
F e r g u s o n , S t e i n , W a t t ,

W a l l a s , A d k in s  
& G r e s h a m , P .A .

312 West Franklin Street,
Suite 2

Chapel Hill, North Carolina 27514 
(by Federal Express)

Peter L. Simmons

W i l l i a m  C .  M c N e i l , III , E s q .
Employment Law  Center
1663 Mission Street, Suite 400
San Francisco, CA 94103 

(by Federal Express)

B a r r in g t o n  D. Pa r k e r , J r ., E s q .
M o r r is o n  & F o e r s t e r

1290 Avenue of the Americas
41st Floor
New York, New York 10104 

(by Hand Delivery)

C r e s s ie  T h i g p e n , E s q .
T h i g p e n , B l u e , S t e p h e n s  

a n d  F e l l e r s

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Suite 300
Raleigh, North Carolina 27602 

(by Federal Express)



COUNSEL PRESS INC.
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(212) 685-9800; (516) 222-1021; (914) 682-0992; (201) 494-3366

(111536)

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