Blue v. US Department of the Army Brief for Appellees

    IN THE UNITED STATES COURT OF APPEALS 
FOR TTTR FOURTH CIRCUIT

SANDRA L- BLUE, ET AL.,
Appellants and 
Plaintiffs-Appellants,

j; UNITED STATES DEPARTMENT OF THE ARMY, ET AL.,
Defendants-Appellees.

-'■-**2 ~y ~ -

......ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
... FOR THE EASTERN DISTRICT OF NORTH CAROLINA

BRIEF FOR APPELLEES

STUART M. GERSONAssistant Attorney General
J. MARGARET P. CURRIN 

United States Attorney
ROBERT S. GREENSPAN 

(202)/FTS 633-5428
THOMAS M. BONDY(202)/FTS 633-2397 Attorneys, Appellate Staff 

Civil Division. Room 3617 Department of Justice 
Washington. DC 20530



TABLE OF CONTENTS
Page

QUESTIONS PRESENTED ........................................ 1
STATEMENT OF THE C A S E ....................................... 2

A. Nature of the C a s e ............................... 2
B. Course of Proceedings in the District Court . . . .  3

1. The Facts Surrounding the Government's
Motions for Sanctions ........................ 3

2. The District Court's Decision Imposing
Sanctions .................................... 6

3. The District Court's Decision on
Plaintiffs' Motions for Reconsideration . . .  13

INTRODUCTION AND SUMMARY OF ARGUMENT ...................... 14
ARGUMENT.................................................... 17

I. THIS COURT SHOULD DEFER TO THE DISTRICT 
COURT'S ASSESSMENT THAT SANCTIONS WERE
WARRANTED........................................ 17
A. The District Court's Assessment 

Deserves Deference Because It Was Based 
On The Trial Judge's Intimate And 
First-Hand Familiarity With The Conduct
Of The Parties And Their Lawyers.............. 17

B. The District Court's Determination Is Also 
Entitled To Deference Because It Turns
So Largely On Factual Findings .............  19

C. Appellants' Failure To Recognize That 
Deference Is Due Reflects Serious 
Mischaracterizations Of The District
Court's Decision............................. 20

II. THE MERE EXISTENCE OF A PRIMA FACIE CASE AT 
THE OUTSET OF THE LITIGATION DOES NOT IMMUNIZE 
PLAINTIFFS AND THEIR LAWYERS FROM SANCTIONS 
FOR THEIR MISCONDUCT DURING THE COURSE
OF THE LITIGATION................................ 2 6

l



Page
HI. ALL OF THE DISTRICT COURT'S SANCTIONS MUST 

BE UPHELD BECAUSE THE DISTRICT COURT'S 
FINDINGS OF BAD FAITH ARE NOT CLEARLY
ERRONEOUS......................................32
A. The District Court's Determination That 

There Was Bad Faith Is A Finding Of Fact 
That May Be Reversed On Appeal Only If 
It Is Clearly Erroneous..................34

B. The District Court Was Not Clearly 
Erroneous In Finding That Plaintiffs And 
Their Lawyers Maintained This Litigation
In Bad Faith And For Improper Purposes . . .  35

C. The District Court Was Not Clearly
Erroneous In Finding That Sandra Blue And 
Beulah Mae Harris Committed Perjury, And 
Plaintiffs' Perjury Confirms The Bad-Faith 
Nature Of This Lawsuit....................41

D. The District Court Was Not Clearly 
Erroneous In Finding That Sandra Blue And 
Beulah Mae Harris Abandoned Claims In Bad 
Faith, And Plaintiffs' Abandonment Of 
Claims Confirms The Bad-Faith Nature Of
This Lawsuit..............................4 3

IV. IN ADDITION, ALTHOUGH THIS COURT NEED NOT
ADDRESS THE ISSUE, THE DISTRICT COURT CLEARLY
DID NOT ABUSE ITS DISCRETION IN IMPOSING
SANCTIONS UNDER RULE 1 1 ........................48
A. The District Court Did Not Abuse Its 

Discretion In Sanctioning The Lawyers 
Under Rule 11 . . . ...................... 49

B. There Is No Merit To Beulah Mae Harris'
Contentions................................. 54

V. APPELLANTS MAY NOT AVOID SANCTIONS FOR THEIR
IMPROPER CONDUCT OF THIS LITIGATION SIMPLY 
BECAUSE THIS HAPPENS TO BE A TITLE VII CASE 
AGAINST THE FEDERAL GOVERNMENT ................ 56

VI. THERE IS NO MERIT TO ATTORNEY SUMTER'S 
ARGUMENT THAT THE UNDERSTANDING IN THE 
DISTRICT COURT WAS THAT SANCTIONS COULD
BE IMPOSED ONLY AGAINST HER CLIENTS AND NOT 
AGAINST H E R ...................................... 52

ii



Page
VII. IT WAS NOT IMPROPER FOR THE DISTRICT COURT

TO IMPOSE A SANCTION AGAINST THE LAW FIRM . . . .  67
VIII. THE DISTRICT COURT DID NOT EXCEED ITS 

AUTHORITY IN ORDERING THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND NOT TO
PAY ANY SANCTIONS..............................69

CONCLUSION................................................73
CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES
Cases;
Actors Equity Ass7!! v. American Dinner

Theatre Inst., 802 F.2d 1038 (8th Cir. 1986) ........ 34
Albright v. Uoiohn Co., 788 F.2d 1217

(6th Cir. 1986)........................................ 49
Alveska Pipeline Serv. Co. v. Wilderness Soc'y,

421 U.S. 240 (1975)....................................  32
Arnold v. Burger Kina Corp., 719 F.2d 63 

(4th Cir. 1983), cert, denied,
469 U.S. 826 (1984)............................  18, 19, 56

Barber v. Kimbrell's, Inc., 577 F.2d 216
(4th Cir.), cert. denied, 439 U.S. 934 (1978) ........ 56

Bower v. Weisman, 674 F. Supp. 109
(S.D.N.Y. 1987)   55

Business Guides. Inc, v. Chromatic Communications 
Enterprises, Inc.. No. 88-15240 (9th Cir.
Dec. 21, 1989)   55

Butler v. Department of Agric., 826 F.2d 409
(5th Cir. 1987) . . ................................. 58, 59

Calloway v. Marvel Entertainment Group,
854 F.2d 1452 (2d Cir. 1988), 
rev'd in part on other grounds.
110 S. Ct. 456 (1989)...................................  55

Carrion v. Yeshiva Univ., 535 F.2d 722
(2d Cir. 1976)   42

iii



Page
Christiansbura Garment Co. v. EEOC,

434 U.S. 412 (1978) . .............................. 31, 58
Cleveland Demolition Co. v. Azcon Scrap Corp.,

827 F. 2d 984 (4th Cir. 1987) .......................... 50
Copeland v. Martinez. 603 F.2d 981 

(D.C. Cir. 1979), cert, denied,
444 U.S. 1044 (1980) .............................. 57-61

Danik. Inc, v. Hartmarx Corp.,
875 F.2d 890 (D.C. Cir.),
cert, granted. 110 S. Ct. 275 (1989) .......... 53, 54, 56

Dreilina v . Peugeot Motors of Am., Inc.,
850 F. 2d 1373 (10th Cir. 1988) ........................ 33

Eash v. Riggins Trucking. Inc., 757 F.2d 557
(3d Cir. 1985) (en banc) ..............................72

Fahrenz v. Meadow Farm Partnership,
850 F. 2d 207 (4th Cir. 1988) .................. 17, 29, 48

Furnco Constr. Corp. v. Waters,
438 U.S. 567 (1978).................................... 28

Gaiardo v. Ethvl Corp., 835 F.2d 479
(3d Cir. 1987) . ......................................  52

Greenberg v. Hilton Int'l Co.. 870 F.2d 926
(2d Cir. 1989) ........................................ 30

Hall v. Cole. 412 U.S. 1 (1973) .......................... 33
Harris v. Marsh. 100 F.R.D. 315

(E.D.N.C. 1983) ......................................  3
Harris v. Marsh, 123 F.R.D. 204

(E.D.N.C. 1988) ..................................  Passim
Harris v. Marsh, 679 F. Supp. 1204

(E.D.N.C. 1987) ..................................  passim
Holmes v. Bevilacgua, 794 F.2d 142

(4th Cir. 1986) (en banc)................................. 26
Hohri v. United States, 782 F.2d 227

(D.C. Cir.), vacated on other grounds,
482 U.S. 64 (1987)  61

- iv -



32

50

72

49

72

35

■35

33

72

40

35

.58

54

52

26

70

In Re Boston & Providence R.R. Corp.. 501 F.2d 545 
(1st Cir. 1974) ................................

Introcaso v. Cunningham. 857 F.2d 965
(4th Cir. 1989) ................................

Itel Containers Int/1 Corn, v. Puerto Rico 
Marine Management Inc.. 108 F.R.D. 96 
(D.N.J. 1985) ..................................

Kamen v. American Tel. & Tel. Co.,
791 F.2d 1006 (2d Cir. 1986) ..................

Kearns v. Ford Motor Co.. 114 F.R.D. 57
(E.D. Mich. 1987) ..............................

LaRouche v. NBC. 780 F.2d 1134 (4th Cir.),
cert. denied. 479 U.S. 818 (1986) ..............

Marston v. American Employers Ins. Co..
439 F.2d 1035 (1st Cir. 1971) ..................

Mills v. Electric Auto-Lite Co..
396 U.S. 375 (1970) ............................

National Ass'n of Radiation Survivors v.
Turnage, 115 F.R.D. 543 (N.D. Cal. 1987) . . . .

National Hockey League v. Metropolitan Hockey
Club. Inc.. 427 U.S. 639 (1976) ................

Nelson v. Piedmont Aviation. Inc.. 750 F.2d 1234 
(4th Cir. 1984), cert, denied,
471 U.S. 1116 (1985)............................

New York Gaslight Club. Inc, v. Carey,
447 U.S. 54 (1980) ............................

Palmer v. BRG of Georgia, Inc.,
874 F.2d 1417 (11th Cir. 1989) ................

Pantry Queen Food, Inc, v . Lifschultz Fast
Freight, Inc.. 809 F.2d 451 (7th Cir. 1987) . . .

Patterson v. McLean Credit Union.
109 S. Ct. 2363 (1989) ........................

Pavelic & LeFlore v. Marvel Entertainment Group.
110 S. Ct. 456 (1989) ..........................

v



6

Perichak v. International Union Of Elec. 
Radio & Machine Workers. Local 601,

Page

Rav A. Scharer & Co. v. Plabell Rubber
Products. Inc. . 858 F.2d 317 (6th Cir. 1988) ..........  72

Roadvav Express. Inc, v. Piper, 447 U.S. 752
(1980) ........................................ 32, 33/ 58

Robinson v. Moses. 644 F. Supp. 975
(N.D. Ind. 1986)......................................72

Sierra Club v. United States Army Corps
of Engineers. 776 F.2d 383 (2d Cir. 1985),
cert. denied. 475 U.S. 1084 (1986) ....................  34

Stevens v. Lawyers Mut. Liab. Ins. Co.,
789 F. 2d 1056 (4th Cir. 1986). ........................  50

Southern Air Transp., Inc, v. ABC, Inc.,
877 F. 2d 1010 (D.C. Cir. 1989)........................ 18

Southern Leasing Partners. Ltd, v. McMullan,
801 F. 2d 783 (5th Cir. 1986) ......................  49, 51

Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248 (1981).................................... 28

Thiel v. First Fed. Sav. & Loan Ass'n,
646 F. Supp. 592 (N.D. Ind. 1986), 
af f'd in part and dismissed in part
without opinion, 828 F.2d 21 (7th Cir. 1987) .......... 72

Thomas v. Capital Sec. Services, Inc.,
836 F. 2d 866 (5th Cir. 1988) ..................  17, 18, 19

United States v. Grayson. 438 U.S. 41 (1978).............. 42
United States v. Hendrix. 505 F.2d 1233 

(2d Cir. 1974), cert, denied,
423 U.S. 897 (1975).................................... 42

United States Postal Serv. Bd.
of Governors v. Aikens. 460 U.S. 711 (1983)............ 24

Westmoreland v. CBS, Inc.. 770 F.2d 1168
(D.C. Cir. 1985) ......................................  19

i VI



Page
White v. Ravmark Indus.. Inc.. 783 F.2d 1175

(4th Cir. 1986)....................................  32, 72

Statutes:
28 U.S.C. § 1927 ...................................... passim
42 U.S.C. § 1988 ......................................  60, 61
42 U.S.C. § 2000e-5(k).................................... 57

Rules:
Federal Rules of Civil Procedure:

Rule 1 1 ..........................................  passim
Rule 1 6 ............................................. passim
Rule 3 7 ................................................. 59

Miscellaneous:
Schwarzer, Rule 11 Revisited.

101 Harv. L. Rev. 1013 (1988)..........................  49

vxi



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH. CIRCUIT

No. 88-1364(L)

SANDRA L. BLUE, ET AL.,
Appellants and 
Plaintiffs-Appellants,
v.

UNITED STATES DEPARTMENT OF THE ARMY, ET AL.,
Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

BRIEF FOR APPELLEES

QUESTIONS PRESENTED
I. Whether the district court's assessment that sanctions 

were warranted because of appellants' misconduct is entitled to 
deference.

II. Whether the mere existence of a prima facie case at the 
outset of the litigation immunizes plaintiffs and their lawyers 
from sanctions for their misconduct during the course of the 
litigation.

III. Whether the district court's findings of bad faith are 
clearly erroneous.

IV. Although this Court need not reach the issue, whether 
the district court abused its discretion in its assessment that 
sanctions were warranted under Rule 11.



V. Whether appellants may avoid sanctions for their 
improper conduct of this litigation simply because this is a 
Title VII case against the federal government.

VI. Whether there is any merit to Attorney-Appellant 
Sumter's argument that the understanding in the district court 
was that sanctions could be imposed only against her clients and 
not against her.

VII. Whether the district court erred in requiring the 
sanctioned lawyers' law firm to shoulder a small part of the 
sanctions burden arising from its attorneys' misconduct.

VIII. Whether the district court exceeded its authority in 
ordering the NAACP Legal Defense and Educational Fund not to pay 
any sanctions.

STATEMENT OF THE CASE
A. Nature of the Case.
This case involves a Title VII action brought against the 

United States Army. Plaintiffs, civilian employees at the U.S. 
Army base at Fort Bragg, in Fayetteville, North Carolina, 
contended that they had been discriminated against on the basis 
of race. After finding, among other things, that plaintiffs' 
evidence was at times "patently perjurious" (679 F. Supp. at 
1378), and that "[n]o reasonable attorney could possibly have 
hoped to prevail in this case" (id. at 1380), the district court 
concluded that the case was groundless and that the litigation 
had been pursued in bad faith. The court imposed sanctions 
against two plaintiffs and three of their lawyers.

2



In this appeal, the two sanctioned plaintiffs and two of the 
three sanctioned lawyers challenge the district court's sanctions 
order. The lawyers' law firm also appeals, contending that the 
district court acted improperly in requiring it to shoulder a 
small part of the sanctions burden arising from its attorneys' 
misconduct. The sixth appellant is the NAACP Legal Defense and 
Educational Fund, Inc. (the "LDF"), which argues that the 
district court exceeded its authority in ordering the LDF not to 
pay any sanctions.

B. nnnrse of Proceedings in the District Court.
1. The Facts Surrounding the Government's 

Motions for Sanctions.
This lawsuit began in 1981 as a class action complaint 

alleging that the civilian employment practices at the U.S. Army 
installation at Fort Bragg, North Carolina, discriminated on the 
basis of race in violation of Title VII of the Civil Rights Act 
of 1964. In an opinion issued in 1983, the district court denied 
class certification. Harris v. Marsh. 100 F.R.D. 315 (E.D.N.C. 
1983).

After class certification was denied, the case went forward 
with thirty-eight (38) individual plaintiffs. See 679 F. Supp. 
at 1231. Following extensive discovery during which the 
government turned over substantial amounts of materials to 
plaintiffs' lawyers, a final pretrial order was entered in 
December 1983.

Trial began in early 1984. The trial of the first 
plaintiff, Mattiebelle Harris, took place in January and February

3



of 1984. The trial of the second plaintiff, Samuel Sheppard, 
started in March 1984 and came to an end in April 1984. Id. at 
1231-1232.

The third plaintiff, Sandra Blue, is one of the appellants 
in this appeal. Shortly before her trial was to begin in April 
1984, she filed her pretrial brief setting forth the claims that 
she intended to try. Blue's pretrial brief did not include 
claims that Blue had said in the pretrial order that she would 
litigate and for which the government had expended substantial 
resources in preparing a defense. The government filed a motion 
for sanctions, arguing that Sandra Blue had abandoned claims in 
bad faith, and in doing so had prejudiced the government. Id. at 
1232 .

Blue's remaining claims —  i.e.. those claims that she had 
not abandoned —  proceeded to trial in April 1984. Over the 
course of the next few weeks and months, plaintiffs began to drop 
out of the lawsuit. One or two or sometimes three at a time, 
plaintiffs filed motions seeking to withdraw entirely from the 
case. A variety of different reasons was given, but the bottom 
line of all of the motions was the same: plaintiffs wanted out 
of the case. Id. at 1226, 1233-1234. One such motion was filed 
by plaintiff Beulah Mae Harris, who along with Sandra Blue is the 
other plaintiff-appellant in this appeal. Id. at 1233.

The government acquiesced in plaintiffs' requests to 
withdraw, but the government insisted that sanctions be imposed 
for what the government perceived to be plaintiffs' outrageous

4



waste of the government's time and of the judicial process. This 
lawsuit had alleged a litany of unlawful and egregious acts of 
race discrimination by the United States Army, and the government 
—  believing itself innocent of all charges —  was fully ready 
for trial and had prepared a comprehensive and vigorous defense. 
Now just as trial was underway, the plaintiffs wanted to withdraw 
their claims. In the goverment's view, the reasons that the 
various plaintiffs gave for wanting to leave the lawsuit were a 
sham; in the government's view the plaintiffs realized that their 
sweeping and very serious allegations against the United States 
Army were baseless. Id. at 1234-1235.^

The district court granted the motions that had been filed 
to withdraw from the lawsuit, but the district court also 
reserved the government's sanctions motions. Id. at 1233. The 
trials of the remaining plaintiffs continued. The Blue trial was 
finished in September 1984. Id. at 1234-1235. The trials of 
plaintiffs Ballew, Evans and McKeller began in September 1984 and 
resumed, after a break, in February 1985. Id. at 1235.

Given that many of the plaintiffs had opted out of the 
lawsuit, and given that the government was seeking sanctions due 
to plaintiffs' bad-faith abandonment of what the government now 
understood to be baseless claims, lawyers for both sides began to 
discuss the possibility of settling the matter so that this 
unfortunate case could be concluded. Such an agreement was

1 The district court was later to find that plaintiffs were 
"deserting a sinking ship." 679 F. Supp. at 1340.

5



reached. A "Final Agreement" was prepared and drafted in July 
1985. The "Final Agreement" was to be signed by all of the 
parties to this lawsuit, and it provided that "the terms and 
conditions set forth [in this agreement] constitute a full and 
complete resolution of all matters alleged in this litigation." 
App. A—774. The government signed the agreement, and all of the 
plaintiffs except for Sandra Blue and Beulah Mae Harris signed 
the agreement. The "Final Agreement" took effect on July 31,
1985, and it disposed of every matter in the lawsuit except for 
the Sandra Blue case and the Beulah Mae Harris case. 679 F.
Supp. at 1237.2

2. The District Court's Decision Imposing Sanctions.
Since Sandra Blue and Beulah Mae Harris had decided not to 

be parties to the "Final Agreement," the merits of Sandra Blue's 
tried claims were still before the court, as were the 
government's sanctions motions regarding both Blue and Harris.
The district court conducted an evidentiary hearing to determine 
whether sanctions were warranted. That hearing itself lasted 
several weeks. 679 F. Supp. at 1236-1237. Both Sandra Blue and 
Beulah Mae Harris testified at the sanctions hearing, as did a 
number of others.

In a published opinion that takes up about two hundred 
pages in the Federal Supplement, the district court concluded

2 A more tentative, less comprehensive agreement had been 
entered into in March 1985. That earlier agreement was nullified 
and superseded by the "Final Agreement" of July 31, 1985. See 
679 F. Supp. at 1237; see also 123 F.R.D. at 210.

6



that sanctions were warranted. Harris v. Marsh, 679 F.2d 1204 
(E.D.N.C. 1987). The court found that Sandra Blue's tried claims 
were frivolous; that the claims that Blue and Harris had dropped 
were frivolous? that Blue had committed perjury; that Harris had 
committed perjury; and that both plaintiffs and their counsel had 
engaged in egregious misconduct and bad faith in the course of 
pursuing this baseless litigation against the government. In 
total, the district court imposed sanctions of about $90,000 
against the plaintiffs and their lawyers.

a. The district court found that the claims that 
Sandra Blue took to trial were completely without merit. The 
court found that "[t]he record in this case is astonishing for 
its lack of evidence to support plaintiff's claimfs]" (679 F. 
Supp. at 1297), and that "the lack of evidence to support [her] 
allegation[s] is so substantial that a finding of frivolity is 
required" (id. at 1307). The court found that Sandra Blue's 
testimony at trial "was filled" with "severe misstatements of 
fact." Id. at 1268.

The court reached the same conclusion with respect to the 
claims that Sandra Blue had abandoned. The court found that the 
explanation that Sandra Blue gave for abandoning claims was 
"wholly incredible" (id. at 1316), and "absolutely incredible" 
fid, at 1317). The court found that the abandoned claims were 
without merit, and that "[t]his plaintiff and her counsel could 
easily have discovered if only they had ever bothered to look and 
objectively evaluate the evidence." Id. at 1322. The court's

7



analysis of the evidence surrounding Sandra Blue's claims 
occupies about 80 pages in the Federal Supplement. Id. at 124 7- 

• 1278, 1278-1313, 1313-1324.
b. As it did with respect to the Blue claims, the 

district court, in a lengthy and exhaustive analysis based on the 
record, determined that the Title VII claims that had been 
brought on behalf of Beulah Mae Harris were groundless. The 
court's discussion examines every aspect of every allegation that 
Beulah Mae Harris had made in this lawsuit. Id. at 1338-1364.

The court made a finding that, in the course of explaining 
to the court why she sought to withdraw from the lawsuit, Beulah 
Mae Harris had "perpetrat[ed] a fraud upon th[e] court." Id. at 
1345. The court specifically found that responsibility for that 
fraud lay not only with Harris herself, but also with her 
lawyers. Id. at 1345-1346. The court found that at the 
sanctions hearing Beulah Mae Harris "blatantly testified in an 
untruthful manner" (id. at 1344), and that her testimony was 
"nothing short of perjurious" (id. at 1345).

c. The court ultimately concluded that sanctions were
warranted, both against Sandra Blue and Beulah Mae Harris 
themselves, and against their lawyers. In a lengthy discussion 
of the applicable law, the court held that sanctions were 
appropriate under four sources: (1) the bad-faith exception to
the American Rule (pursuing and abandoning claims in bad faith); 
(2) Fed. R. Civ. P. 11 (failing to investigate the facts before 
signing pleadings); (3) Fed. R. Civ. P. 16(f) (failing to

8



participate in good faith in connection with the pretrial order); 
and (4) 28 U.S.C. § 1927 (unreasonably multiplying court 
proceedings). 679 F. Supp. at 1376-1390. The sanctions were
designed to allow the government to recoup its attorney's fees 
and expenses that were expended in this litigation, and also to 
account for the costs of the court's own time spent on this case. 
Id. at 1324-1326, 1326-1338, 1364-1365, 1365-1370, 1392.3

The court drew up a specific list of claims that Blue had 
taken to trial, and with respect to those claims the court stated 
that "the court finds [that they] either were initiated in bad 
faith or maintained in bad faith so long after it became apparent 
they were meritless that a finding of bad faith is required."
Id. at 1378. The court then drew up another lengthy list of 
claims that Blue and Harris had abandoned. With respect to the 
latter claims, the court stated that "the court finds that [all 
of those] claims were (1) either initiated or maintained and 
prolonged in bad faith and (2) abandoned or withdrawn at trial 
without just cause and in bad faith after the filing of the Final 
Pre-Trial Orders." Ibid, (emphasis in original).

The court provided documentation of appellants' bad faith. 
The court found that "[e]vidence at trial and hearing established 
the following." Id. at 1378. The testimony of both plaintiffs 
was, at times, "patently perjurious." Ibid, (emphasis added).

3 The government had submitted a detailed accounting of its 
attorney's fees, which the district court in its opinion analyzed 
at some length. 679 F. Supp. at 1237 n.47, 1326 n.196, 1326-1338 
(Blue), 1365-1370 (Harris).

9



"Answers by plaintiffs to examination by defense counsel 
frequently were deliberately evasive." Id. at 1379. The 
testimony of Blue and Harris (and other plaintiffs as well) "was 
astounding for its lack of candor and truthfulness. These 
plaintiffs consistently testified either out of shocking 
ignorance or stunning disregard for the veracity of their 
allegations." Id. at 1224. "Reading the transcript of their 
testimony leads to one undeniable conclusion —  on a number of 
occasions, Sheppard, Blue, Ballew and [Beulah Mae] Harris lied." 
Ibid.

With regard to the conduct of the lawyers, the court made a 
finding that "[p]re-trial, let alone pre-filing, investigation on 
nearly every claim alleged by plaintiffs and their counsel was 
wholly inadequate and, in many cases, seemingly non-existent."
Id. at 1378-1379. The court made a finding that "[a]lthough 
plaintiffs7 counsel expended a great deal of effort at securing 
defendant's documents and files, the litigation established their 
wholesale failure to read, digest, and analyze the material 
handed to them." Id. at 1379 n.267 (emphasis added). The court 
determined that "[i]f 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." Id. at 1379.

The court found, moreover, that at trial the lawyers had 
"assisted plaintiffs in blatant changes of testimony during 
recesses." Id. at 1384. In the district court's view, "[n]o

10



reasonable attorney could possibly have hoped to prevail in this 
case." Id. at 1380.

Pointing to plaintiffs' "extraordinarily incredible" 
testimony (id. at 1379), and to the lawyers' "inexcusable" (id. 
at 1379 n.267) failure to properly investigate the facts, the 
court found that "[ajlthough none of these factors alone on any 
one claim would be sufficient to support a finding of bad faith, 
the synergistic effect of all the factors in combination with the 
number of frivolous claims alleged and maintained is 
devastating." Id. at 1379. "The conclusion to be drawn from 
this disgraceful scenario is inescapable; the claims listed above 
either were filed or, shortly thereafter, maintained and 
prolonged in bad faith." Ibid. "In addition, many of the claims 
were withdrawn or abandoned on the same basis." Ibid.

The court stated that "[wjhether plaintiffs' respective 
purposes were entirely vindictive, that is to damage the 
reputation of [Army personnel] and subject them to personal 
harassment, is not a question free from doubt." Ibid. "Clearly, 
however, plaintiffs were motivated by this thought at least in 
part and on a not infrequent basis in the litigation." Ibid, 
(emphasis added). "This conclusion is solidly reinforced by 
consideration of plaintiffs' testimony and their behavior on the 
witness stand." Ibid.

In sum, the court concluded that "plaintiffs cried 
discrimination, and counsel, despite a stunning paucity of 
evidence, filed suit, hoping defendant would surrender rather

11



than go to trial." Id. at 1380. "When defendant refused to bow 
down and fought back, plaintiffs went to trial, glaringly 
unprepared and without a case, apparently hoping to teach the 
defendant a lesson and force a favorable settlement." Ibid, 
(emphasis added). "Neither occurred. A better case for an award 
of attorney's fees against counsel could not be made." Ibid.

d. In accordance with its findings, the court imposed 
monetary sanctions against plaintiffs Sandra Blue and Beulah Mae 
Harris in the amount of $13,000 and $17,000 respectively. Id. at 
1392. The court also imposed sanctions against four of 
plaintiffs' lawyers: Julius Chambers ($30,000), Geraldine Sumter 
($12,500), Gilda Glazer ($5,000) and Penda Hair ($5,000). Ibid. 
The court ordered the law firm that Chambers, Sumter and Glazer 
had been affiliated with to pay a sanction of $1,413.62. Ibid.4 
The court's order provides that the law firm may reimburse its 
attorneys' sanctions if it wishes to do so, but only up to 75 
percent. Ibid.

The court's order also provides that the NAACP Legal Defense 
and Educational Fund (the "LDF") is forbidden from paying any of 
the sanctions. Ibid. Julius Chambers, the attorney who received 
the heaviest sanction in this case, had left the law firm while 
this case was ongoing in the district court and had become the 
Director-Counsel of the LDF. 123 F.R.D. at 215.

4 Penda Hair was not affiliated with the law firm that 
Chambers, Sumter and Glazer were affiliated with. Penda Hair is 
one of several lawyers affiliated with the NAACP Legal Defense 
and Educational Fund, Inc., to have participated as counsel for 
the plaintiffs in this case.

12



3. The District Court./s Decision on Plaintiffs'
Motions for Reconsideration.

On motion for reconsideration, the district court rejected 
among other things attorney Sumter's argument to the effect that 
she should not be sanctioned because she was just an associate 
working under a partner, Julius Chambers. Harris v. Marsh, 123 
F.R.D. 204 (E.D.N.C. 1988). The court noted that, in reality, 
Sumter was the plaintiffs' chief trial counsel while much of the 
misconduct in this case occurred. Id. at 215; accord 679 F.
Supp. at 1392 ("primary trial counsel"). The court found, based 
on the record, that "a significant amount of the reckless, 
vexatious and frivolous conduct of plaintiffs is fairly laid to 
rest at Sumter's doorstep." 123 F.R.D. at 223.

The court accepted, however, attorney Penda Hair's 
contention that sanctions against Hair were inapproriate. Id. at 
219-223. Hair stated that although her name appeared on the 
signature blocks of many of the papers in this case, she was 
unaware of that fact at the time that the papers were filed, and 
she told the court that, as far as she could tell, Chambers and 
Sumter had routinely put her name on pleadings without telling 
her, even after Hair had ended her involvement in this case and 
was no longer counsel for the plaintiffs in this litigation. Id. 
at 220-221. The district court found that Penda Hair was telling 
the truth, and the court ultimately absolved her of any 
responsibility for the wrongdoing that transpired in this

13



lawsuit.5 In the court's view, the fact that Chambers and Sumter 
had included Penda Hair's name on the signature blocks of 
pleadings that she had nothing to do with and did not even know 
about "exemplifie[d] counsel's conduct in this litigation." Id. 
at 221 n.15.

Since Penda Hair was ultimately absolved of any liability 
for sanctions, she does not appeal the district court's decision. 
Attorney Glazer has chosen not to appeal the sanctions imposed 
against her. The other sanctioned lawyers, Julius Chambers and 
Geraldine Sumter, appeal, as do the two sanctioned plaintiffs, 
Sandra Blue and Beulah Mae Harris. The law firm and the NAACP 
Legal Defense and Educational Fund also appeal. The former 
argues that the district court erred in requiring it to pay 
sanctions; the latter argues that the district court erred in 
ordering it not to pay sanctions.

INTRODUCTION AND SUMMARY OF ARGUMENT
This case is truly extraordinary, and truly unfortunate.

This case is not about race discrimination. This case is about 
plaintiffs whose testimony was "patently perjurious." 679 F. 
Supp. at 1378. This case is about plaintiffs who took the stand 
and "lied." Id. at 1224. This case is about plaintiffs and 
lawyers who committed a "fraud upon th[e] court." Id. at 1345.

5 Although the court granted Hair's motion for 
reconsideration, it did not at first absolve her entirely of all 
wrongdoing. 123 F.R.D. at 221-222. But in its subsequent, 
second amended judgment dated October 3, 1988, the court 
expressly vacated all sanctions against Hair and all findings 
that Hair had violated Rule 11. App. A-1039 through A-1044.

14



This case is about a lot of ugly things that are nowhere 
mentioned in appellants' briefs.

Plaintiffs Sandra Blue and Beulah Mae Harris ask this Court 
to reverse the district court's sanctions order. But their 
appellate brief does not contest the district court's findings 
that they committed perjury. Their appellate brief does not 
acknowledge those findings.

The district court found that Sandra Blue and Beulah Mae 
Harris maintained this lawsuit at least in part for improper 
purposes in order to harass the Army. 679 F. Supp. at 1379. 
Nowhere in their presentation to this Court do Blue and Harris 
mention this finding. There is no merit to their appeal. Blue 
and Harris cannot hope to overcome the district court's 
devastating factual findings if they refuse to acknowlege their 
existence.

Attorney Julius Chambers seeks to have this Court vacate the 
sanctions against him. But his brief does not acknowledge the 
district court's finding that "[a]lthough plaintiffs' counsel 
expended a great deal of effort at securing defendant's documents 
and files, the litigation established their wholesale failure to 
read, digest, and analyze the material handed to them." 679 F. 
Supp. at 1379 n.267. Nor does his brief bring to this Court's 
attention the district court's finding that he and the other 
lawyers improperly maintained a baseless lawsuit "apparently 
hoping to teach the defendant a lesson and force a favorable 
settlement." Id. at 1380.

15



Instead of facing up to and trying to take on the factual 
findings that the district court did make, much of the Chambers 
brief is devoted to attacking legal determinations that the 
district court did not make. Like Blue and Harris, Chambers has 
simply shut his eyes to the district court's findings of fact. 
Those elaborate and well-documented findings do not magically 
disappear, however, just because appellants have chosen to ignore 
them. The district court's comprehensive and detailed findings 
of fact, solidly rooted in the record, are dispositive of this 
case.

Attorney Geraldine Sumter also comes to this Court asking 
that the sanctions against her be set aside. She suggests that 
her role in the case was secondary to Julius Chambers, and that 
therefore sanctions are unwarranted. The district court 
determined, however, that in reality Sumter was plaintiffs' lead 
trial counsel while much of the misconduct in this case took 
place. Indeed, in addressing Sumter's argument below, the 
district court specifically found that "a significant amount of 
the reckless, vexatious and frivolous conduct of plaintiffs is 
fairly laid to rest at Sumter's doorstep." 123 F.R.D. at 223. 
Sumter's appellate brief does not refer to this finding by the 
district court. Sumter's theory of why she sould be exculpated 
is meritless.

16



ARGUMENT
I. THIS COURT SHOULD DEFER TO THE DISTRICT COURT'S ASSESSMENT 

THAT SANCTIONS WERE WARRANTED
A. The District Court's Assessment Deserves Deference

Because It Was Based On The Trial Judge's Intimate And 
First-hand Familiarity With The Conduct Of The Parties 
And Their Lawyers

It is the law of this Circuit that a district court's 
decision that sanctions are warranted is entitled to deference. 
See, e.g.. Fahrenz v. Meadow Farm Partnership, 850 F.2d 207, 210 
(4th Cir. 1988) (trial court's decision to impose sanctions under 
Rule 11 is "entitled to deference"; the decision "is within the 
sound discretion of the trial court and the court's decision will 
only be reversed if it is a clear abuse of discretion"). Common 
sense underlies this rule. Especially where, as here, there is a 
question of bad faith, the question whether sanctions are 
warranted turns largely on the district court's assessment of the 
conduct of the parties and their lawyers.

The district court enjoys a unique "perspective." Thomas v. 
Capital Security Services. Inc.. 836 F.2d 866, 873 (5th Cir.
1988) (en banc). Unlike the appellate court, the district court 
observes first-hand the actual conduct of the parties and their 
lawyers, on a day-to-day basis and often, as in this case, over a 
long period of time. The district court thus "taste[s] the 
flavor of the litigation" (Westmoreland v. CBS, Inc., 770 F.2d 
1168, 1174 (D.C. Cir. 1985)), and occupies a vantage point that 
simply cannot be replicated in the court of appeals. That 
vantage point should be respected.

17



The circumstances of this case illustrate that, in the area 
of sanctions, "[t]he trial judge is in the best position to 
review the factual circumstances and render an informed judgment 
as he is intimately involved with the case, the litigants, and 
the attorneys on a daily basis." Thomas, 836 F.2d at 873. The 
district judge here specifically stated in his opinion that his 
determination that sanctions were warranted was "reinforced" by 
his first-hand assessment "of plaintiffs' testimony and their 
behavior on the witness stand." 679 F. Supp. at 1379. This 
Court should decline appellants' invitation to conduct a "second­
hand review" (Thomas. 836 F.2d at 873) of the trial judge's 
contemporaneous assessment.

As this Court has noted, "[t]he one common strand running 
through all the[] cases is that assessment of frivolousness and 
attorneys' fees are best left to the sound discretion of the 
trial court after a thorough evaluation of the record and 
appropriate factfinding." Arnold v. Burger King Corp., 719 F.2d 
63, 66 (4th Cir. 1983), cert, denied, 469 U.S. 826 (1984). "We 
accord the district court 'wide discretion' in determining 
whether factual or bad faith reasons exist for the imposition of 
sanctions. * * * Thus, we will reverse such a determination only 
if we find an abuse of that discretion." Southern Air Transports 
Inc, v. ABC. Inc.. 877 F.2d 1010, 1017 (D.C. Cir. 1989). In line 
with the precedent of this Court and others, this Court should 
approach the district court's decision with "deference."
Fahrenz. 850 F.2d at 210.

18



B. The District Court's Determination Is Also Entitled To 
Deference Because It Turns, So Largely On Factual 
Findings

As this Court and others have pointed out, one of the 
reasons that the decision to impose sanctions is left in large 
part to the trial court's discretion is that that decision tends 
to turn upon the facts of the particular case; and determination 
of the facts is, of course, peculiarly within the province of the 
trial judge. See, e.q.. Arnold. 719 F.2d at 66 (trial court 
imposes sanctions in its discretion based upon its factfinding); 
Thomas. 836 F.2d at 873 ("the imposition or denial of sanctions 
of necessity involves a fact-intensive inquiry"). This case 
provides a graphic illustration. The district court's decision 
to impose sanctions in this case was firmly rooted in numerous 
findings of fact, findings that appellants have barely 
acknowledged, much less shown to be clearly erroneous, in their 
presentation to this Court.

The following findings, all of which are discussed in more 
detail later in this brief, undergird the district court's 
decision to impose sanctions in this case. The court found that 
Sandra Blue and Beulah Mae Harris "lied" (679 F. Supp. at 1224), 
and were "patently perjurious" (id. at 1378) in their sworn 
testimony. The court found that Beulah Mae Harris perpetrated "a 
fraud upon th[e] court," and that responsibility for that fraud 
was shared by her lawyers. Id. at 1345-1346. The court found 
that the lawyers' investigation of the facts was grossly 
deficient. E.q.. id. at 1378-1380, 1387. And, of course, the

19



court made a specific factual finding that the plaintiffs and 
their lawyers maintained baseless claims in bad faith "at least 
in part" to "subject [the defendants] to personal harassment," 
apparently in the hope of "forcfing]" the government to settle 
the case. Id. at 1378, 1379.

As we discuss in more detail below, each one of these 
determinations is a finding of fact that may be reversed on 
appeal only if it is clearly erroneous, and one of the 
conspicuous features of appellants7 presentation to this Court is 
that appellants do not make any substantial effort to challenge 
these findings. The numerous factual findings that pervade the 
district court's opinion are inextricably intertwined with the 
court's ultimate decision to impose sanctions.

C. Appellants' Failure To Recognize That Deference Is 
Due Reflects Serious Mischaracterizations Of The 
District Court's Decision

Appellants barely mention, much less show to be clearly 
erroneous, many of the key factual findings that are at the heart 
of this case. Instead, appellants mischaracterize the district 
court's decision as "riddled with legal errors." Sumter Br. 25. 
Appellants then proceed to knock down the strawman they have 
erected. Appellants have presented this Court with a highly 
distorted picture of the district court's decision.

1. Appellants assert, for example, that the district court 
simply "assumed" that, because plaintiffs moved to withdraw from 
the lawsuit, it automatically followed that their claims must 
have been meritless. Chambers Br. 54. The district court did no

20



such thing. The district court's lengthy, elaborate and 
painstaking analysis does not assume anything.

The simple reality is that, after the government filed its 
first motion for sanctions, plaintiffs began to drop out of the 
lawsuit in droves. The district court conducted a hearing to 
determine why this phenomenon was taking place. Beulah Mae 
Harris testified at the hearing. The district court found that 
she deliberately lied on the stand, and that her explanation of 
why she sought to withdraw constituted perjury and intentional 
fraud. 679 F. Supp. at 1345, 1346. The district court then 
carefully and exhaustively analyzed the allegations of race 
discrimination that Beulah Mae Harris and her lawyers had made 
against the Army, and found them to be baseless. Id. at 1347- 
1362. In short, whatever errors the district court might be 
guilty of in this case, making assumptions is not one of them.
The district court's opinion occupies about 200 pages in the 
Federal Supplement and is extraordinarily detailed in all facets 
of its analysis.

2. Appellants also contend that the district court erred in 
relying on what appellants refer to as "hindsight credibility 
determinations." Chambers Br. 50. The phrase "hindsight 
credibility determination" is a curious euphemism. In plain 
English, what the district court did was to find that Sandra Blue 
and Beulah Mae Harris perjured themselves. E.q., 679 F. Supp. at 
1378. Appellants in their presentation to this Court have opted 
simply to ignore the findings of perjury. Given that the perjury

21



weighs heavily against their position in this appeal (especially 
with regard to the central question of bad faith), it is perhaps 
understandable that appellants would like to ignore it, but it 
borders on the ludicrous for appellants to suggest that the 
district court had a legal duty to ignore it as well.

In the course of assessing Sandra Blue's tried claims on the 
merits, and in the course of determining whether sanctions should 
be imposed with regard to those claims, the district court found 
that, with regard to central aspects of her testimony at trial, 
Sandra Blue made "severe misstatements of fact." 679 F. Supp. at 
1268. And in the course of endeavoring to discover why Beulah 
Mae Harris suddenly sought to withdraw from the lawsuit shortly 
after the trial had finally begun, the district court made a 
finding of fact that Harris' explanations in her signed affidavit 
and in her oral testimony constituted "purposeful misstatements 
of fact designed to deceive both the defendant and th[e] court." 
Id. at 1346. The district court found, in addition, that 
responsibility for this "fraud upon the court" lay not only with 
Harris herself, but also with her lawyers. Id. at 1345-1346. It 
is meritless to suggest, as appellants apparently do, that the 
district court somehow committed legal error by taking this 
egregious misconduct into account in the course of deciding 
whether the behavior in this case warranted the imposition of 
sanctions.

3. Appellants indulge in yet another serious 
mischaracterization of the district court's decision. Appellants

22



claim that the district court somehow applied the "wrong law" 
regarding the question of what constitutes a prima facie case 
under Title VII, and that this "wrong law" taints the district 
court's decision to impose sanctions. See, e. q. , Chambers Br.
53; Blue/Harris Br. 13. Once again, appellants ignore what the 
district court actually said.

To begin with, it is important to point out that the 
question in this appeal is not whether there was a prima facie 
case. As we show in the next section of our argument, appellants 
are very seriously mistaken in suggesting that the mere presence 
of a prima facie case somehow automatically exculpates them from 
sanctions for their grossly improper and abusive behavior in the 
conduct of this litigation. The question is not whether there 
was a prima facie case; the question is whether sanctions were 
warranted for committing perjury; for perpetrating a fraud upon 
the court; for failing to investigate the facts; for improperly 
maintaining meritless litigation that "no reasonable attorney" 
(679 F. Supp. at 1380) should have maintained; and for abandoning 
claims in bad faith and acting in bad faith in a variety of other 
respects as well. As we show below, the "prima facie" question 
that appellants harp on in their briefs is a red herring.

That said, the district court's analysis does not in any 
event turn on any controversial notions about what makes up a 
prima facie case. Most of the district court's references to the 
question of the prima facie case which appellants have drawn into 
question occur in the context of the court's discussion of the

23



merits of Sandra Blue's tried claims, i.e., in the course of 
deciding whether Sandra Blue should win or lose on the merits of 
her lawsuit. See. e. q. . 679 F. Supp. at 1288-1293. In 
addressing that question, the court found it useful to analyze 
her claims in terms of the elements of a prima facie case. But 
contrary to appellants' repeated representations to this Court 
fsee. e.q.. Chambers Br. 18-19, 54 n.76), the district court's 
discussion does not rest on erroneous views of the concept of a 
prima facie case.

Appellants have completely overlooked the fact that the 
district court took pains to emphasize that it was ultimately 
irrelevant to the merits of her tried claims whether Sandra Blue 
had established a prima facie case. As the district court 
correctly noted (679 F. Supp. at 1288; see id. at 1283 n.126,
1310 n.164), the Supreme Court has held that, once a Title VII 
case has been tried and the defendant has adequately satisfied 
its burden of articulating a legitimate nondiscriminatory reason 
for the employment decision at issue, for purposes of assessing 
the merits of the case it does not matter whether the plaintiff 
has in fact made out a prima facie case, and the question whether 
the prima facie elements have been met simply disappears. United 
States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 
715 (1983). In keeping with Aikens. the gist of the district 
court's analysis was that "even assuming" there was a prima facie 
case, Sandra Blue's claims were still lacking in merit.

24



The court stated, for example, with respect to MPA 273-79, 
that "the court will assume arguendo that plaintiff has, in fact, 
made out her prima facie case." 679 F. Supp. at 1288. Accord 
id. at 1289 ("assuming Blue established her prima facie case"); 
id. at 1290 (claim is groundless "even assuming" plaintiff made 
out a prima facie case). Similarly, with respect to MPA 303-79, 
the court stated that "[w]ithout deciding the issue, the court 
assumes plaintiff has made a prima facie case on this claim."
Id. at 1291. Accord id. at 1292 (claim is meritless and 
frivolous even "assuming plaintiff presented a prima facie 
case"). And with regard to Blue's supervisory appraisal claim, 
the district court stated that the claim was lacking in merit 
"[e]ven assuming plaintiff has made a prima facie case." Id. at 
1293. Yet again, regarding Blue's excessive subjectivity claim, 
the court stated that, "[e]ven if a prima facie case is assumed, 
however, th[e] lack of evidence mandates a finding" in favor of 
the government. Id. at 1310 n.164. See also id. at 1322 
(assuming "arguendo" the existence of a prima facie case).

These repeated statements by the district court —  
statements that appellants have ignored entirely in their 
presentation to this Court —  amply illustrate that, in insisting 
that the district court's decision turns on a legally flawed 
definition of the prima facie case, appellants have very 
seriously distorted the district court's analysis. The district

25



court rendered its assessment "even assuming" that there was a 
prima facie case.
II. THE MERE EXISTENCE OF A PRIMA FACIE CASE AT THE OUTSET OF 

THE LITIGATION DOES NOT IMMUNIZE PLAINTIFFS AND THEIR 
LAWYERS FROM SANCTIONS FOR THEIR MISCONDUCT DURING THE 
COURSE OF THE LITIGATION
The district court found that the Title VII claims brought 

on behalf of Sandra Blue and Beulah Mae Harris were frivolous, 
and that appellants acted improperly and in bad faith in their 
litigation of these claims. Accordingly, the district court 
imposed sanctions. Appellants' response is feeble. Appellants 
respond only that, in their view, because there was a prima facie 
case for their Title VII claims, it follows that they cannot be 
sanctioned. Indeed, it is noteworthy that substantial portions 
of appellants' briefs are devoted merely to trying to show that 
there was a prima facie case. See Blue/Harris Br. 14-17;
Chambers Br. 18 ("B_. Harris Could Establish a Prima Facie Case 
on Her Promotion Claims"̂  ; id. at 23 f"C. Harris Could Establish

6 Appellants contend that the district court applied the 
wrong law when it cited this Court's decision in Holmes v. 
Bevilacqua. 794 F.2d 142 (4th Cir. 1986) (en banc). Chambers Br. 
54 n.76; see id. at 19. Appellants have neglected to inform this 
Court that the district court specifically stated that, to the 
extent that Holmes reflected a controversy regarding the meaning 
of a prima facie case, the court would "avoid that controversy" 
altogether by simply assuming that a prima facie case was 
established. 679 F. Supp. at 1291. Accord, e.q. , 679 F. Supp. 
at 1310 n.164. Appellants' invocation of Holmes is thus highly 
misleading.Equally misleading are appellants' references to the Supreme 
Court's recent decision in Patterson v. McLean Credit Union, 109 
S. Ct. 2363 (1989). As we have shown, the district court 
assessed the claims of discrimination "even assuming" there was a 
prima facie case; the district court's analysis thus did not turn 
on any incorrect notions about the definition of a prima facie 
case. Cf. Chambers Br. 19, 54.

26



a Prima Facie Case on her Job Classification Claim"); id. at 25 
f”D. Harris Could Establish a Prima Facie Case of Discriminatory 
Denial of Training"); id. at 30 ("B. fBlue'sl Tried Claims 
Presented Prima Facie Cases of Discrimination"); id. at 40 ("C. 
Blue Could Present a Prima Facie Case on Her Untried claims").

Appellants' overriding emphasis on whether there was a prima 
facie case is very seriously misguided. Appellants apparently 
believe that because there was a prima facie case, it follows 
that the plaintiffs were free to commit perjury; that the lawyers 
were free to ignore their obligation under Rule 11 to conduct a 
reasonable investigation into the facts; that claims could be 
pursued and then abandoned in bad faith; and that all of this 
misconduct fell outside the district court's authority to impose 
sanctions. This novel theory —  that the mere existence of a 
prima facie case bars the imposition of sanctions for gross 
misconduct committed by plaintiffs and their lawyers during the 
course of a Title VII action —  is supported neither by law nor 
by logic. Indeed, as this Court has indicated, "it is possible 
for a plaintiff to establish a prima facie case * * * which is 
nonetheless groundless" flntrocaso v. Cunningham. 857 F.2d 965, 
967-968 (4th Cir. 1988)).

Appellants ignore this Court's statement in Introcaso. They 
also ignore common sense. As appellants themselves take pains to 
show, the standard for a prima facie case is low. See, e.g., 
Blue/Harris Br. 14-17. Generally speaking, for present purposes 
a plaintiff in a Title VII case can make out a prima facie case

27



if she shows that she is black, that she applied for a job for 
which she was qualified, and that she did not get the job. In 
the absence of anv other evidence, a plaintiff who has 
established a prima facie case is entitled to an inference that 
her failure to get the job was due to race discrimination. See 
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 
254 (1981); Furnco Construction Coro, v. Waters. 438 U.S. 567, 
579-580 (1978). Appellants apparently contend, however, that, 
once they have established a prima facie case, a plaintiff and 
her lawyers in a Title VII action are free to disregard any 
evidence that comes to light in discovery and may continue to 
litigate the case even without a reasonable and good-faith belief 
that there was race discrimination, and that under such 
circumstances the district court may not impose sanctions. To 
articulate this theory is to refute it.

Even where there is a prima facie case, the available 
evidence might be such that no reasonable person could believe 
that the case has merit. See Introcaso. 857 F.2d at 967-968.
Just because a plaintiff is black, applies for a job for which 
she is qualified and does not get the job, does not mean that in 
light of all of the pertinent evidence one can necessarily 
entertain a reasonable belief that race discrimination was a 
factor in the employment decision. There might be available 
evidence from which a reasonable person could only conclude that 
race discrimination was not a factor. See ibid. There is no 
reason why a plaintiff who continues to press her claims in the

28



face of such evidence should automatically be insulated from 
sanctions, especially if. like Sandra Blue here, she ultimately 
perjures herself on the stand and thus demonstrates that she 
obviously does not even have a good-faith belief in the validity 
of her claims.

Similarly, it is difficult to see why the mere existence of 
a prima facie case should suspend the attorney's obligation to 
conduct a reasonable investigation of the facts. While the 
existence of a prima facie case might allow a lawyer to file a 
lawsuit, seek discovery, and continue to litigate the case in the 
absence of evidence indicating that the case is meritless, it 
should not and does not relieve the lawyer of his obligation to 
look at the available evidence, including the evidence turned 
over during discovery, and to assess whethar, in light of that 
evidence, the case can reasonably be considered to have merit.
If the lawyer fails to investigate the facts adequately, or if 
the lawyer assesses the evidence and in bad faith presses on 
regardless of what the evidence shows, he should not be, and is 
not, insulated from sanctions. Cf. Fahrenz v. Meadow Farm 
Partnership. 850 F.2d 207, 210 (4th Cir. 1988) (plaintiff and his 
lawyer acted improperly for purposes of Rule 11 when they pursued 
litigation after "evidence came to light" showing that the case 
had no merit).

That is, of course, exactly what happened in this case. The 
district court specifically found that, after the action was 
filed, materials were turned over to the plaintiffs in discovery,

29



but plaintiffs' lawyers failed to conduct an adequate 
investigation of those materials. 679 F. Supp. at 1378—1379,
1379 n.267, 1387. Plaintiffs and their lawyers continued with 
the litigation, but they did not have a reasonable or a good- 
faith belief that the case had merit. Indeed, Sandra Blue 
exhibited her bad faith by perjuring herself on the stand.
What is more, plaintiffs then compounded their wrongdoing by 
abandoning claims in bad faith; Beulah Mae Harris perjured 
herself in the course of purporting to explain why she was 
withdrawing from the lawsuit. It is very awkward to suggest that 
this extraordinary and egregious abuse of the judicial process is 
outside the reach of the district court's sanctions authority 
simply because Sandra Blue and Beulah Mae Harris are black, 
applied for jobs for which they were qualified, and did not get 
them. Cf. Blue/Harris Br. 14-17.

To be sure, there may be Title VII cases in which the 
question whether there is a prima facie case will be germane to 
the question whether sanctions are appropriate. Particularly in 
cases where the sanctions inquiry is framed solely in terms of 
whether the plaintiffs brought a Title VII action that was 
frivolous at its inception, it would seem that the existence of a 
prima facie case might in appropriate circumstances be a factor 
militating against the imposition of sanctions. Cf. Greenberg v . 
Hilton International Co.. 870 F.2d 926, 934-935 (2d Cir.) 
(suggesting that sanctions should not be imposed for the initial 
"filing" of a frivolous Title VII claim where "at the start of

30



thfel action” a lawyer could have had a reasonable belief that 
there was a prima facie case) (emphasis added), vacated on other 
grounds. 875 F.2d 39 (2d Cir. 1989).

But that is not this case. Here, the scope of the 
sanctionable misconduct goes far beyond the narrow question 
whether this lawsuit was frivolous at the moment when it was 
initially filed. Indeed, the district court recognized as much, 
and made quite clear in its opinion that one of the evils in this 
case was the maintaining of meritless litigation, regardless of 
whether it was proper to bring the action in the first place. As 
we have noted, the district court specifically found that, even 
after discovery was taken, plaintiffs' lawyers failed to conduct 
a reasonable investigation of the facts, and the court determined 
that even if a reasonable lawyer might have filed this lawsuit, 
no reasonable lawyer would have maintained and continued to 
pursue it. 679 F. Supp. at 1377-1380, 1379 n.267, 1387. Under 
these circumstances, and keeping in mind the perjury and other 
wrongdoing that unfolded during the course of this litigation, it 
is no response for appellants to say merely that the lawsuit was 
legitimate on the day that it was filed. Cf. Christiansburg 
Garment Co. v. EEOC. 434 U.S. 412, 422 (1978) (sanctions 
appropriate where "plaintiff is found to have brought or 
continued a [frivolous] claim in bad faith"; sanctions 
appropriate where "plaintiff continue[s] to litigate after [the 
case] clearly bec[o]me[s] [frivolous]") (emphasis added).

31



In short, the district court found that appellants acted
improperly in continuing to press forward with this case once it
should have become clear to them that the case was meritless.
The district court also found that appellants, plaintiffs and
lawyers alike, exhibited bad faith in their conduct of the
litigation. Appellants' retort that there was a prima facie case
does not address the district court's concerns.
III. ALL OF THE DISTRICT COURT'S SANCTIONS MUST BE UPHELD

BECAUSE THE DISTRICT COURT'S FINDINGS OF BAD FAITH ARE NOT 
CLEARLY ERRONEOUS

Where, as here, a court finds that attorneys and litigants 
have conducted litigation in bad faith, it may sanction all 
persons responsible for such wrongful conduct under its inherent 
power to control the litigation before it. Roadway Express, Inc, 
v. Piper. 447 U.S. 752, 766 (1980); White v. Ravmark Industries, 
Inc.■ 783 F.2d 1175, 1177 (4th Cir. 1986).

In appropriate circumstances the discretion to award fees as 
a sanction for bad faith conduct of litigation is broad. Alveska 
Pipeline Service Co. v. Wilderness Society. 421 U.S. 240, 257-259 
(1975); Perichak v. International Union of Electrical Radio & 
Machine Workers. 715 F.2d 78, 80 (3d Cir. 1983); In re Boston & 
Providence RR Corp.. 501 F.2d 545, 549-550 (1st Cir. 1974). The 
district court "may award attorneys' fees when the interests of 
justice so require * * *. [Indeed,] federal courts do not 
hesitate to exercise this inherent equitable power whenever 
'overriding considerations indicate the need for such a

32



/  // Hall v. Cole. -412 U.S. 1, 5 (1973) (quoting Mills v.recovery.
Electric Auto-Lite Co.. 396 U.S. 375, 391-392 (1970)).

Moreover, the courts' power to impose sanctions for a 
party's or a lawyer's bad faith "is not restricted to cases where 
the action is filed in bad faith. '[B]ad faith may be found, not 
only in the actions that led to the lawsuit, but also in the 
conduct of the litigation.'" Roadway Express, Inc, v. Piper, 447 
U.S. 752, 766 (1980) (quoting Hall v. Cole. 412 U.S. at 15 
(emphasis added)). Thus, sanctions for bad faith "may attach in 
any bad-faith lawsuit, whether unreasonably filed or improperly 
continued." Dreilinq v. Peugeot Motors of America, Inc., 850 
F.2d 1373, 1382 (10th Cir. 1988) (emphasis added).

Here, the district court, in a detailed opinion that spans 
about 200 pages in the Federal Supplement, found that the 
egregious misconduct of both counsel and litigants during .the 
course of this litigation constituted bad faith. The litany of 
misconduct found by the district court is truly extraordinary, 
including perjury, factual misrepresentations to the court, and 
other abuses of the judicial process. The court's findings of 
bad faith are solidly rooted in the record, and those findings
compel the conclusion that the district court did not err in

. • 7imposing sanctions.

7 Appellants do not suggest that despite the factual 
findings of bad faith the district court erred in awarding 
sanctions. Indeed, the briefs fail to mention any circumstances 
mitigating against the award of attorney's fees and the district 
court found that no such mitigating circumstances existed. 679 
F. Supp. at 1390-1392.

33
(continued...)



A. The District Court's Determination That There Was Bad 
Faith Is A Finding Of Fact That May Be Reversed On 
Appeal Only If It Is Clearly Erroneous

It is well established that the district court's finding of 
bad faith in a particular case is a factual determination and may 
be reversed on appeal only if clearly erroneous. E.g.. Perichak, 
715 F.2d at 79; Sierra Club v. United States Army Corps of 
Engineers. 776 F.2d 383, 390 (2d Cir. 1985), cert, denied, 475 
U.S. 1084 (1986); Actors Eguitv Association v. American Dinner 
Theatre Institute. 802 F.2d 1038, 1042 (8th Cir. 1986). The 
finding of bad faith in this case is particularly factbound, as 
it was based upon the district court's evaluation of the 
litigants and counsel before it, a task that this Court cannot 
duplicate. The district court emphasized the importance of its 
close familiarity with the litigation and its participants, 
highlighting that its "conclusion [that sanctions were warranted] 
is solidly reinforced by consideration of plaintiffs' testimony 
and their behavior on the witness stand." 679 F. Supp. at 1379.

"Factors such as the sincerity with which a party puts forth 
an issue cannot be judged from a cold record." Marston v.

7(...continued)
Sumter argues that the district court failed to document her 

bad faith conduct sufficiently. Sumter Br. 13-15. This 
suggestion is meritless. The district court's repeated 
references to the misconduct of counsel cannot be interpreted^to 
exclude Sumter, who was chief counsel during the period in which 
much of the misconduct occurred. The court specifically noted 
that, "[a]s trial counsel for much of the litigation, 
particularly Blue's claims and the sanctions hearing regarding 
both plaintiffs, a significant amount of the reckless, vexatious 
and frivolous conduct of plaintiffs is fairly laid to rest at 
Sumter's doorstep." 123 F.R.D. at 223 (emphasis added).

34



American Employers Ins. Co.. 439 F.2d 1035, 1042 (1st Cir. 1971). 
Thus, as we have noted, in a sanctions case considerable 
deference is owed to the district court's first hand knowledge of 
the case. In this Court's words, "[w]hether to impose such 
sanction can best be decided by the district court, which has 
first hand knowledge of counsel's conduct in the course of the 
action." LaRouche v. NBC. Inc.. 780 F.2d 1134, 1140 (4th Cir.), 
cert, denied. 479 U.S. 818 (1986); see Nelson v. Piedmont 
Aviation. Inc.. 750 F.2d 1234, 1238 (4th Cir. 1984), cert... 
denied. 471 U.S. 1116 (1985) ("we believe that the district court
* * * which was able to judge first hand counsel's conduct in the 
course of the action, should be accorded deference in its 
judgment [as to sanctions]."). Deference to the factual findings 
of the district court is particularly appropriate in this case.

B. The District Court Was Not Clearly Erroneous In Finding 
That Plaintiffs And Their Lawyers Maintained This 
Litigation In Bad Faith And For Improper Purposes

The district court made a finding that plaintiffs Blue and 
Harris conducted this litigation at least in part for an improper 
purpose. The court found that Blue and Harris were "motivated *
* * at least in part" by a "vindictive" intention to "subject 
[certain Army personnel] to personal harassment." 679 F. Supp. 
at 1379. That finding is nowhere mentioned, much less shown to 
be clearly erroneous, in appellants' briefs. That finding in and 
of itself should put to rest any notion that this case was 
litigated in good faith.

35



The district court also made a finding that the lawyers 
litigated this case with an improper purpose. The court found, 
in the context of noting that "[a] better case for an award of 
attorney's fees against counsel could not be made," that this 
case was maintained "apparently [in the hope] of teach[ing] the 
defendant a lesson and fore[ing] a favorable settlement." 679 F. 
Supp. at 1380. This finding too goes unmentioned in appellants' 
briefs, but it lent substantial support to the district court's 
bad faith determination. A lawyer who acts in good faith does 
not maintain a lawsuit in order to "teach the defendant a lesson" 
and try to "force" a settlement.

The bad faith inherent in the improper motivation underlying 
this litigation is amply reflected in the record. The district 
court found, for example —  in yet another finding that 
appellants have not alluded to —  that "the litigation 
established [the lawyers'] wholesale failure to read, digest, and 
analyze the material handed to them [in discovery]." 679 F.
Supp. at 1379 n.267. That "wholesale failure" is strongly 
indicative of bad faith. Good faith requires a lawyer to look at 
the materials turned over to him in discovery.

Bad faith also manifested itself in the lack of merit in the 
claims themselves. In a comprehensive and detailed discussion —  
a discussion which has gone largely unmentioned in appellants' 
briefs —  the district court exhaustively analyzed all of the 
claims brought by Sandra Blue and Beulah Mae Harris and found

36



most of them to be baseless. The district court provided ample 
support for that conclusion.

For example, at trial appellants did not marshal a minimally 
viable statistical showing, even though a statistical showing was 
a necessary predicate for some of their claims. 679 F. Supp. at 
1379, 1383-1384. The district court made a finding that 
appellants7 pretrial statistical showing was "intellectually 
dishonest.77 Id. at 1308 n.160.8

8 Appellants7 contentions regarding their statistical 
showing are completely and utterly meritless. Appellants seem to 
suggest that the court's procedural rulings prevented them from 
properly making their statistical presentation during the Blue 
trial, see Chambers Br. 33 n.43, but appellants admit that they 
in fact put on their statistical case in the trial of plaintiff 
Geraldine Ballew, through the testimony of Dr. Parrow. Id. at 
34. Appellants accuse the court of improperly failing to take 
into account Dr. Parrow7s testimony in the Ballew case (see id. 
at 33), but appellants have neglected to inform this Court that 
the district court expressly held that 77[a]ssuming arguendo that 
the court were to consider Parrow7s testimony in Ballew toward 
Blue's claim, the result would be the same. 77 679 F. Supp. at
1274 n.108; accord id. at 1298 n.150.

Appellants discuss the merits of Dr. Parrow7s testimony, 
Chambers Br. 44, but appellants completely ignore the district 
court's findings. The district court found that "Parrow 
essentially admitted on cross-examination that his analysis 
failed to show any statistically relevant fact analysis about 
whether blacks at Fort Bragg had been discriminated against in 
the promotion process." 679 F. Supp. at 1226 n.8. The district 
court also found that "Parrow7s analysis in Ballew was so flawed 
that it was unworthy of credence." Id. at 1274 n.108. As the 
district court explained, "Parrow radically amended his testimony 
concerning the number of MPA's he considered between direct, 
cross-examination, and re-cross-examination; failed to 
distinguish those who were not referred because of the 'top ten7 
Rule from those who were not referred due to the 85% Rule; 
utilized an incomplete database for his projections; and never 
attempted to control for the disproportionately negative effect 
that Blue and Ballew had on the * * * statistics due to their 
multiple applications and non-referrals." Ibid.

Dr. Parrow7s analysis was superficial, and the district 
court suggested that Dr. Parrow did not understand the Fort Bragg

(continued...)
37



And of course the conduct of both the plaintiffs and their 
lawyers strongly supported the findings of meritlessness and bad 
faith. Sandra Blue and Beulah Mae Harris "lied" on the stand 
(679 F. Supp. at 1224), and their sworn testimony was "filled" 
with "severe misstatements of fact." See, e.g. , id. at 1268. It 
bears emphasis that the lawyers were squarely implicated in this 
outrageous misconduct; the district court found that "[o]n 
numerous occasions, plaintiffs radically changed their testimony 
after consultation with counsel at recess." Id. at 1379.
Accord, e.q.. id. at 1384 (noting that the lawyers "assisted 
plaintiffs in blatant changes of testimony during recesses"); id. 
at 1317 (Blue "made up" testimony "this time * * * with the

8 (...continued)
promotion process. Id. at 1225 n.8. Dr. Parrow did not employ a 
standard deviation analysis (see id. at 1298 n.150), and 
"plaintiff's statistical evidence failed to establish any 
meaningful statistical disparity between blacks and whites under 
the 85% Rule." Id. at 1274 n.108. Accord 679 F. Supp. at 1297- 
1298 & nn. 148, 149, 150. Appellants have not mentioned the 
district court's assessment of Dr. Parrow's testimony, much less 
shown it to be erroneous.

Appellants also point to the AAP and FEORP (Chambers Br.
36), but, again, appellants have failed to mention the district 
court's finding. 679 F. Supp. at 1240 (explaining why "no valid 
conclusion of underrepresentation for Title VII purposes can be 
made simply by referring to either the AAP or the FEORP.").

Appellants' resort to the Dickerson and Horne testimony is 
similarly unavailing. Chambers Br. 33-35. Appellants have taken 
snippets of their testimony out of context. Neither witness 
stated that the 85% Rule gave rise to unlawful discrimination; 
they opined, at most, that it might be the case that more blacks 
and women would be referred without the 85% Rule than with the 
85% Rule. Cf. 679 F. Supp. at 1275.

Finally, there is also no merit to appellants' suggestion 
that the 85% Rule was eliminated because of this lawsuit.
Chambers Br. 35, 55. The 85% Rule was eliminated, in 1982, 
because of renegotiation of the collective bargaining agreement. 
679 F. Supp. at 1244.

38



possible assistance of counsel while on recess"). See also 123 
F.R.D. at 221 n.15 (noting other examples of "profoundly 
disappointing" conduct by the lawyers).

Instead of addressing the district court's factual 
determinations, appellants seek merely to show that there was a 
prima facie case. As we have already demonstrated, however, 
appellants' proffer that there was a prima facie case does not 
answer the district court's findings here. Indeed, one of the 
most striking features of appellants' briefs is that, reading 
their description of this case, one can barely recognize that 
appellants are addressing the same case that the district court 
decided. See, e.q., 679 F. Supp. at 1250, 1265.

Perhaps the single most striking aspect of appellants' 
briefs is that they totally ignore the actual course of events in 
this case. For example, reading their briefs, one would get the 
impression that perjury never occurred. Similarly, appellants 
have overlooked the bad faith abandonment of claims. However, as 
we show in more detail in the next two sections of this brief, 
the district court's decision cannot meaningfully be discussed 
without addressing these topics. Plaintiffs' perjury and the bad 
faith abandonment of claims are core components of the district 
court's bad faith finding.

Appellants' incomplete analysis leaves some very basic 
questions unanswered. If the claims in this case had merit and 
were advanced in good faith, why did the plaintiffs "fill[]" 
their testimony with "severe misstatements of fact"? If

39



appellants had a reasonable and good faith belief in the validity 
of their claims, why did they suddenly drop them? And, if this 
litigation was, as appellants claim, being conducted in good 
faith, why did plaintiffs —  with their lawyers' help (e.g., 679 
F. Supp. at 1317, 1345-1346, 1384) —  lie about the reasons for 
abandonment?

The district judge, after becoming intimately familiar with 
every facet of this case over a prolonged period of time, came to 
the conclusion that the case was conducted so egregiously as to 
warrant a finding of bad faith. The district judge was a witness 
to the events, his first-hand assessment is entitled to 
deference, and appellants have provided very little reason for 
this Court to second-guess the district court's contemporaneous 
and considered judgment. That judgment should be affirmed. See 
generally National Hockey League v. Metropolitan Hockey Club,
Inc.. 427 U.S. 639, 642-643 (1976).9

9 As appellants note (Chambers Br. 58-63), the district 
court found in addition to the misconduct described above that 
the lawyers acted improperly with regard to certain conflicts of 
interest. See 679 F. Supp. at 1362. Appellants argue that the 
court went astray in pointing to this aspect of the lawyers' 
misconduct, seizing upon the fact that the district court itself 
had at an earlier stage in the litigation stated that the 
conflicts had been satisfactorily resolved. See ibid.
Appellants have neglected to bring to this Court's attention, 
however, the fact that the district court stated in its opinion 
that its earlier assessment that the conflicts had been resolved 
had been based on the "assurances of [plaintiffs'] counsel," 
assurances which the court now understood to have been 
unreasonable. See ibid.; see also 679 F. Supp. at 1363.

We would hasten to add, however, that although we certainly 
do not think that the district court was wrong under the 
circumstances in finding that the lawyers had acted improperly 
with respect to the conflicts, we would point out for this

(continued...)
40



C. The District Court Was Not Clearly Erroneous In Finding 
That Sandra Blue and Beulah Mae Harris Committed Perjury, And Plaintiffs' Perjury Confirms The Bad-Faith 
Nature Of This Lawsuit

The district court made explicit findings that Blue and 
Harris perjured themselves. See, e. q. , 679 F. Supp. at 1378.
The opinion makes clear that the blatant lying under oath engaged 
in by Blue and Harris were not merely isolated incidents, but 
pervaded their entire testimony. The district court said of Blue 
and Harris that, along with two of their co-plaintiffs it could 
not "honestly recall another witness with whom it has been less 
favorably impressed * * * in all its years on the bench and in 
practice." 679 F. Supp. at 1224. The district court generally 
characterized their testimony as "astounding for its lack of 
candor and truthfulness." Ibid. The district court stated that 
its review of their testimony "leads to one undeniable conclusion 
—  on a number of occasions * * * Blue * * * and Harris lied." 
Ibid.

The district court found that the testimony of both Blue and 
Harris was "at times, patently perjurious." 679 F. Supp. at 
1378. "At times, even on the witness stand, plaintiffs seemed to 
care little whether in fact [the charges of discrimination] in 
fact were true or false." Ibid. The court's findings of

9(...continued)
Court's information that the government did not request the 
specific type of sanction that the court ultimately imposed for 
this particular aspect of the lawyers' wrongdoing, namely a 
determination that the lawyers had acted in violation of the 
North Carolina Rules of Professional Conduct, see 679 F. Supp. at 
1363.

41



plaintiffs' "severe misstatements of fact" (id. at 1268) are 
documented and are spread throughout the district court's 
extensive opinion.

It is difficult to imagine a case in which the interests of 
justice more strongly require the imposition of sanctions than 
here, where the trial court has found that both plaintiffs lied 
under oath. The Supreme Court has termed perjury "'a 
manipulative defiance of the law."' United States v. Grayson,
438 U.S. 41, 51 (1978) (quoting United States v. Hendrix, 505 
F.2d 1233, 1236 (2d Cir. 1974), cert, denied, 423 U.S. 897 
(1975)). At the very least, it is a grave abuse of the judicial 
process, and a case in which the plaintiffs repeatedly perjured 
themselves is one in which bad faith is manifest.

Certainly, there can be no proper purpose for perjury. It 
is altogether appropriate for the district court to use its 
inherent power to sanction such conduct. See Perichak, 715 F.2d 
at 84 n.9 (plaintiff's "'materially false statements [made] under 
oath' are, having been critical to the success of his case, 
alone, enough to support a finding of bad faith") (citation 
omitted); Carrion v. Yeshiva University, 535 F.2d 722, 728 (2d 
Cir. 1976) (finding bad faith where the plaintiff's testimony was 
"an unmitigated tissue of lies" and she had "deliberately 
perjured herself."). Indeed, "[n]o more appropriate case can be 
imagined for the imposition of attorneys' fees against a losing 
plaintiff than a case such as the one under review here, where 
the plaintiff's claims were the product of perjured testimony,

42



false affidavits, [and other misconduct]." Perichak, 715 F.2d at 
85.

In our view, it is remarkable that, in their presentation to 
this Court, appellants have chosen not to bring to this Court's 
attention the district court's findings that plaintiffs' 
testimony was perjurious. See. e.g., 679 F. Supp. at 1378. That 
perjury is bad faith, and the district court's findings of 
pervasive perjury in and of themselves strongly suggest that the 
district court's sanctions were eminently appropriate. Indeed, 
the failure to sanction a plaintiff found to have based his case 
on perjured testimony may be reversible error. Perichak, 715 
F.2d at 84-87.

D. The District Court Was Not Clearly Erroneous In Finding That Sandra Blue And Beulah Mae Harris Abandoned Claims 
In Bad Faith, And Plaintiffs' Abandonment Of Claims 
Confirms The Bad-Faith Nature Of This Lawsuit

In April 1984, on the eve of her trial, Sandra Blue filed 
her pretrial brief which indicated that Blue was not going to 
press certain claims that had been specifically designated for 
trial in the final pretrial order. The government had gone to 
great expense in preparing a defense to all of those claims, and 
the government moved for sanctions, believing that Blue had 
improperly abandoned the claims in bad faith. See page 4 supra; 
679 F. Supp. at 1232-1233. The district court agreed.

The district court found that at least with respect to some 
of the abandoned claims, "no excuse, verified or otherwise, has 
ever been presented to the court with respect to the abandonment 
of [those claims]" (679 F. Supp. at 1315 (emphasis in original)),

43



and that, to the extent the abandonment was explained at all, 
Blue's explanations were "implausible, contradictory and wholly 
incredible" (id. at 1316). The court found that Blue was simply 
not telling the truth as to her reason for withdrawing her 
claims, and the court found that Blue's testimony at the 
evidentiary hearing was "nothing more than a post-hoc deceptive 
rationale for some other undisclosed reason for abandoning the 
claim[s] —  most likely because [the claims were] frivolous."
Id. at 1317.

This scenario repeated itself with respect to Beulah Mae 
Harris. In May 1984, very shortly after the government filed its 
first sanctions motion in this case —  the motion against Sandra 
Blue —  Beulah Mae Harris suddenly moved to withdraw entirely 
from the case even though her claims had yet to come to trial.
679 F. Supp. at 1233. To justify her decision to drop out of the 
lawsuit, she set forth, in affidavits and sworn testimony at an 
evidentiary hearing, a number of rationales. The district court 
found her affidavits and her sworn testimony to be "nothing short 
of perjurious," and concluded that, like Sandra Blue's 
abandonment of claims, Beulah Mae Harris' withdrawal manifested 
bad faith. 679 F. Supp. at 1345-1347, 1378.

The district court found that the assertions that Harris 
made about why she was suddenly abandoning her claims constituted 
"the perpetration of a fraud upon th[e] court" (id. at 1345), and 
that Harris' explanations for why she was pulling out of the 
lawsuit amounted to "purposeful misstatements of fact designed to

44



deceive both the defendant and this court" (id. at 1346). The 
court found that in purporting to set forth the reasons for her 
withdrawal, Harris "blatantly testified in an untruthful manner." 
Id. at 1344.10

Appellants have ignored the district court's explicit 
findings that both Sandra Blue and Beulah Mae Harris abandoned 
claims in bad faith. See t e.q ., 679 F. Supp. at 1378. Those 
findings are well documented in the record, and appellants do not 
and could not challenge them as clearly erroneous. Those 
findings, incorporating findings of egregious lying under oath, 
cannot be reconciled with any notion that there was good faith in 
this lawsuit.

Appellants apparently believe that the abandonment of claims 
—  abandonment which took place in bad faith —  was not a central 
issue in this case. Appellants could not be more wrong. 
Abandonment of claims is at the heart of this entire litigation, 
is at the heart of the district court's bad faith findings, and 
is at the heart of the district court's decision to impose 
sanctions. By not coming to grips with the court's findings of

10 In light of the perjury at the sanctions hearing, 
appellants are mistaken when they suggest that the district court 
erred in imposing sanctions for bad faith conduct at the 
sanctions hearing. Chambers Br. 58. Since perjury occurred at 
the sanctions hearing, it follows that the litigation of that 
hearing was itself conducted in bad faith. Accordingly, in the 
circumstances of this case it was appropriate for sanctions to be 
imposed for bad-faith litigation of the sanctions hearing, and 
there is no merit to appellants' argument that the district court 
erred in imposing such sanctions.

45



bad faith abandonment, appellants have overlooked a key component 
of the case.

Appellants have failed to grasp that plaintiffs' abandonment 
of claims signified the lack of merit of those claims. From the 
beginning it was the government's view that claims were dropped 
because they were groundless. In its very first sanctions 
motion, for example —  the motion against Sandra Blue —  the 
government indicated that it believed that the claims were being 
abandoned because plaintiffs and their lawyers were aware that 
they were "dubious to begin with" and had been improperly pursued 
despite a lack of "evidentiary support." 679 F. Supp. at 1233; 
see also id. at 1226. The district court agreed. E.g., id. at 
1233.

Indeed, the circumstances in which plaintiffs' abandonment 
of claims took place gave support to the district court's 
findings that, on their merits, the claims were baseless. It is 
not irrelevant that plaintiffs began dropping out of this lawsuit 
in droves shortly after the government filed its first sanctions 
motion. See pages 4-5 supra. As the district court put it,
"[i]n viewing this scenario unfold, it must be remembered that 
Harris' decision to withdraw was not an isolated case, but rather 
was part of a process in which a number of plaintiffs sought to 
expeditiously get out of the lawsuit at the same time for various 
reasons. The mental impression vividly carved in the court's 
memory at the time was, quite bluntly, of the litigants deserting 
a sinking ship." 679 F. Supp. at 1340.

46



As the court's colorful description suggests, the 
circumstances surrounding plaintiffs' abandonment of claims gave 
rise to some obvious questions. If Beulah Mae Harris had a 
reasonable and good faith belief in the merit of her case, why 
did she seek to withdraw from the lawsuit —  and why did her 
decision to withdraw occur very shortly after the government had 
filed its first sanctions motion? And if Blue and Harris in fact 
had good reasons for dropping claims, why did they lie to the 
district court instead of just presenting their legitimate 
reasons?

The district court of course answered these questions with 
resounding clarity, finding, essentially, that Blue and Harris 
had in all likelihood abandoned their claims "with the advice and 
assistance of counsel * * * with the knowledge that most, if not 
all, of [their] allegations were frivolous in nature." Id. at 
1347; see id. at 1317. In other words, one of the elements of 
this case —  an element that appellants ignore —  is that the 
abandonment of claims is inextricably intertwined with the 
finding that plaintiffs, along with their lawyers, were aware of 
the lack of merit of their claims and had improperly maintained 
baseless litigation against the government.

It is of course appropriate for litigants and their lawyers 
to drop claims when they become aware that the claims are 
baseless. The district court recognized as much. See, e.g., 679 
F. Supp. at 1378 n.264. But where, as here, plaintiffs and their 
lawyers maintain baseless litigation against the government in

47



bad faith and for improper purposes, they cannot escape sanctions 
simply because when ultimately faced with the government's 
vigorous defense at trial —— as well as the government's 
sanctions motions —  they finally decide to give up and put an 
end to their improper tactics. Cf. pages 53-54 infra (Rule 

11).11
IV. IN ADDITION, ALTHOUGH THIS COURT NEED NOT ADDRESS THE ISSUE, 

THE DISTRICT COURT CLEARLY DID NOT ABUSE ITS DISCRETION IN 
IMPOSING SANCTIONS UNDER RULE 11
The district court's findings that plaintiffs and their 

lawyers acted in bad faith are not clearly erroneous.
Accordingly, all of the sanctions in this case should be upheld 
as a proper exercise of the court's inherent power, and there is 
no need for this Court even to reach the question whether, in 
addition, the district court's sanctions were also warranted 
under Rule 11. Nevertheless, because appellants' contentions

11 Since the sanctions imposed in this case were fully 
warranted under the district court's inherent power to impose 
sanctions for bad faith conduct, there is no need for this Court 
to address appellants' contention that the district court erred 
in its interpretation of the level of misconduct that is required 
for the imposition of sanctions under 28 U.S.C. § 1927. ^ee 
Chambers Br. 81-84. Even if, as appellants assert, sanctions may 
not be imposed under 28 U.S.C. § 1927 absent findings of bad 
faith, such findings are present in this case, and therefore 
sanctions are warranted under section 1927 even under the 
standard that appellants espouse. Accord 679 F. Supp. at 1384.

We would note, however, that it is certainly questionable 
whether appellants are correct. This Court, for example, has 
suggested that sanctions would be justified under section 1927 
where "plaintiff's counsel continued to pursue their claims for 
some time after it would have been reasonable and responsible to 
dismiss the claims," Fahrenz v. The Meadow Farm Partnership, 850 
F.2d 207, 210 n.l (4th Cir. 1988) (emphasis added), a standard 
considerably lower than the threshold of "bad faith" urged by 
appellants.

48



regarding Rule 11, are, in our view, without merit, we briefly
* • 12address them in order to set the record straight.

A. The District Court Did Not Abuse Its Discretion In 
Sanctioning The Lawyers Under Rule 11

1. The purpose of Rule 11 is twofold: "[to] discourage
dilatory or abusive tactics and help to streamline the litigation
process by lessening frivolous claims or defenses." Rule 11
Advisory Committee Notes. The focus of the Rule 11 inquiry is on
the adequacy of the prefiling inquiry. See Kamen v. American
Telephone & Telegraph Co.. 791 F.2d 1006 (2d Cir. 1986); Albright
v. Upjohn Co.. 788 F.2d 1217 (6th Cir. 1986); Southern Leasing
Partners Ltd, v. McMullan, 801 F.2d 783, 788 (5th Cir. 1986);
Schwarzer, Rule 11 Revisited. 101 Harv. L. Rev. 1013, 1021-1025
(1988) .

12 Similarly, this Court need not address appellants' 
contentions that the district court erred in imposing sanctions 
under Fed.R.Civ.P. 16. The actions that led in the district 
court's view and in the government's view to Rule 16 violations 
were included within the misconduct for which sanctions were 
imposed under the district court's inherent power. See 679 F. 
Supp. at 1389-1390. Thus, whether or not the district court 
erred in invoking Rule 16, the sanctions must still be upheld.

We would note, however, that Rule 16 is an important 
management tool that addresses the use of pretrial conferences to 
formulate and narrow issues for trial. G. Heileman Brewing Co. 
v, Joseph Oat Corn.. 871 F.2d 648, 650 (7th Cir. 1989) (en banc); 
see Thomas. 836 F.2d at 870-871 n.3. Here, the district court 
found that counsel included claims in the pretrial orders 
resulting from the pretrial conferences without a reasonable 
factual or legal basis and in the knowledge that the government 
would be forced to expend time and money preparing for those 
meritless claims. See 679 F. Supp. at 1389. Imposing sanctions 
for this bad faith conduct is well within the district court's 
"very broad discretion" to "insure the expeditious and sound 
management of the preparation of cases for trial." In re Baker, 
744 F.2d 1438, 1440 (10th Cir. 1984) (en banc), cert, denied, 471 
U.S. 1014 (1985).

49



When an attorney signs a document covered by the Rule 11 
signing requirement, his signature is a certification that "to 
the best of his knowledge, information, and belief formed after 
reasonable inquiry, [the complaint] is well grounded in fact and 
is warranted by existing law." Fed.R.Civ.P. 11. Under this 
rule, an attorney is required to investigate the factual and 
legal basis of a claim before filing a paper. Cleveland 
Demolition Co.. Inc, v. Azcon Scrap Coro.. 827 F.2d 984, 987 (4th 
Cir. 1987). An objectively reasonable investigation is required. 
Ibid.; Pantry Queen Foods. Inc, v. Lifschultz Fast Freight, Inc., 
809 F.2d 451, 453 (7th Cir. 1987). "The determination of whether 
the document is warranted * * * must be made under an objective 
standard of reasonableness, and the district court's decision to 
impose Rule 11 sanctions may not be disturbed except for an abuse 
of discretion." Introcaso. 857 F.2d at 969; See Stevens v. 
Lawyers Mutual Liability Ins. Co.. 789 F.2d 1056, 1060 (4th Cir. 
1986) .

Here, there was no abuse of discretion. To the contrary, 
the district court correctly found "transparent violations of 
Rule 11 at every turn in this litigation." 679 F. Supp. at 1387.

As appellants concede, the district court found that counsel 
had shirked their responsibility to ascertain and assess the 
facts in light of Title VII's legal standards, stating that 
"[h]ad they done this 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

50



of discovery." 679 F. Supp. at 1379. Astonishingly, appellants
do not contest this finding, but, terming it a mere finding of 
"lack of professionalism," suggest that it does not support an 
award of sanctions. See Chambers Br. 80. In fact, this finding 
shows this case to be a paradigm of one requiring sanctions under 
Rule 11. Certainly, counsel's investigation cannot meet the 
standards of objective reasonableness imposed by Rule 11 where 
the district court explicitly found that counsel "failed to 
objectively view many of the relevant documents related to both 
plaintiffs' promotion claims." 679 F. Supp. at 1384.

The district court found that when discovery was completed, 
it should have been reasonably apparent that a large portion of 
both Blue's and Harris' claims were without factual basis, and 
that discovery should have made counsel aware of the fact that 
they had no reasonable basis to rely on either plaintiff. 679 F. 
Supp. at 1387. Gaps and inconsistencies in their versions should 
have caused counsel to question their stories. Ibid. Reliance 
on one's client as a source of facts does not necessarily 
constitute a "reasonable inquiry" (see Southern Leasing, 801 F.2d 
at 788 ("Blind reliance on the client is seldom a sufficient 
inquiry * * *")), and any such reliance in this case was not 
objectively reasonable. As the district court noted, "[w]hen 
conspiracy theories abound and every negative employment 
decision, whether effected by black or white, military or 
civilian personnel, is questioned on a racial basis, counsel have

51



an obligation to inquire behind their client's claims." 679 F. 
Supp. at 1387.

The district court found that "the litigation established 
[the lawyers'] wholesale failure to read, digest, and analyze the 
material handed to them [in discovery]." 679 F. Supp. at 1379 
n.267. The district court properly determined that pleadings 
filed as a result of the lawyers' culpable inaction amply 
warranted sanctions under Rule 11.

2. Appellants do not contest the district court's factual 
finding that "the litigation established [the lawyers'] wholesale 
failure to read, digest, and analyze the material handed to them
[in discovery]." 679 F. Supp. at 1379 n.267; see_also id. at
1378-1379 (prefiling inquiry was "wholly inadequate"). Instead 
they advance two legal arguments why the district court's Rule 11 
sanctions were, in their view, unwarranted. Neither has merit.

First, appellants contend that the district court held, 
incorrectly, that Rule 11 imposes a continuing obligation to 
update previously filed pleadings. Chambers Br. 50 n.68. But 
the district court made no such error. The court correctly noted 
that, "even if no continuing obligation exists under Rule 11," 
"Rule 11 is implicated each time a new series of papers is 
filed." 123 F.R.D. at 229. Thus, if discovery establishes that 
a claim is fruitless, the claim must not be pursued in further
filings or Rule 11 is violated. Ibid. ; Gaiardo v ._Ethyl—Corp.. ,
835 F.2d 479, 484 (3d Cir. 1987); Pantry Queen Foods v.
Lifschultz Fast Freight, 809 F.2d 451, 454 (7th Cir. 1987). In

52



Fr i e d , Fr a n k , H a r r i s, Sh r i v e r  & Ja c o b s o n
A  P A R T N E R S H I P  I N C L U D I N G  P R O F E S S I O N A L  C O R P O R A T I O N S

O N E  N E W  Y O R K  P L A Z A  • N E W  Y O R K ,  N .Y .  1 0 0 0 4 - 1 9 8 0

S U I T E  8 0 0
I O O I  P E N N S Y L V A N I A  A V E N U E ,  N .W.  
W A S H I N G T O N ,  D . C .  2 0 0 0 4 - 2 5 0 5  

( 2 0 2 )  6 3 9 - 7 0 0 0  
T E L E X  8 9 2 4 0 6  

D E X  ( 2 0 2 )  6 3 9 - 7 0 0 3  
D E X  ( 2 0 2 )  6 3 9 - 7 0 0 4  
D E X  ( 2 0 2 )  6 3 9 - 7 0 0 8

7 2 5  S O U T H  F I G U E R O A  S T R E E T  
L O S  A N G E L E S ,  C A L I F O R N I A  9 0 0 1 7 - 5 4 3 8  

( 2 1 3 )  6 8 9 - 5 8 0 0  
T E L E X :  6 5 0 2 9 7 6 7 0 1  

F A C S I M I L E  (213)  6 8 9 - 1 6 4 6

(212) 8 20 -800 0

C A B L E  “ S T E R I C  N E W  Y O R K ' '  
T E L E X .

W.  U. I. 6  6 2  119  
W.  U.  I. 6 2 0 2 2 3  

W. U.  D O M  1 2 8 1 7 3  
F A C S  I M I L E  .

X E R O X  (21 2)  7 4 7 - 1 5 2 5  
D E X  ( 2 1 2 )  7 4 7 - 1 5 2 6  
D E X  ( 2 1 2 )  8 2 0 - 8 4 4 5  
D E X  ( 2 1 2 ) 8 2 0 - 8 4 6 6

W R I T E R ’S  D I R E C T  L I N E

3  K I N G ’S  A R M S  Y A R D  
L O N D O N ,  E C 2 R ,  7 A D  E N G L A N D  

( O i l )  ( 4 4 )  ( l) 6 0 0 - 1 5 4 1  
T E L E X !  8 8 7 6 0 6  

C A B L E  " T O L O N D  L O N D O N  E C 2 "
f a c s i m i l e :

( O i l )  ( 4 4 )  (I)  6 0 6 - 9 4 1 6

(212) 820-8423

January 23, 1990

BY HAND
Steve Ralston, Esq.
NAACP Legal Defense and 

Educational, Fund, Inc.
99 Hudson Street
16th Floor
New York, NY 10013

Re: Harris v. Marsh
Dear Steve:

Enclosed is a copy of the government's brief. Thank 
you for being so helpful in the preparation of our first 
brief. We have approximately twenty days to file our reply 
brief and we would be grateful for any thoughts you may have in 
that regard.

Thank you again for your assistance and please call 
me, John Sullivan (820-8064), Peter Simmons (820-8455) or 
Bonnie (820-8004) with any comments or advice you may have.

Sincerely,

Tricia Kallett Kiosk
TKK:mr 
Enc.



this case such claims were pursued in further filings, and 
accordingly the district court properly determined that "[a] 
review of this case leads to the inexorable conclusion that Rule 
11 was violated with each and every filing of the plaintiffs 
relevant to the Blue and Harris claims from (and including) the 
Pre-Trial Orders forward (if not considerably before that date)" 
123 F.R.D. at 229 (emphasis added). In sum, nothing in the 
district court's decision rests on a holding that Rule 11 imposes 
a continuing obligation to update previously filed pleadings.

Second, appellants argue that no Rule 11 sanctions can be 
imposed in regard to the abandoned claims, despite the fact that 
the pursuit of those claims, up until the moment of abandonment, 
imposed costs upon the government, which was forced to spend 
substantial time and money preparing a defense to claims which 
ultimately were never asserted. This argument too lacks merit; 
indeed, the argument makes a mockery of Rule 11 and the policy it 
promotes of requiring adequate prefiling investigation and 
discouraging the pursuit of meritless claims. As the D.C.
Circuit has very recently concluded: "the policies behind Rule 
11 do not permit a party to escape its sanction by merely 
dismissing an unfounded case. The benefits to such a dismissal 
would accrue to precisely those plaintiffs for which Rule 11 
intends 'punishment and deterrence,' while the costs Rule 11 is 
designed to shift would remain with the defendant upon whom the 
plaintiff unfairly thrust them." Danik, Inc, v. Hartmarx Corp.,

53



875 F.2d 890, 894 (D.C. Cir.), cert. granted, 110 S. Ct. 275 

(1989).
Abuse of the judicial process occurs where, as here, claims 

are made and papers are filed without adequate prefiling
investigation and then are abandoned —  in bad_faith on the
eve of trial or shortly after trial begins. As the D.C. Circuit 
has recently concluded, litigants and their lawyers cannot escape 
the consequences of their failure to comply with Rule 11 by 
belatedly abandoning claims that either never should have been 
brought in the first place or that should have been abandoned as 
soon as discovery made their meritlessness apparent. Ibid.

B. There Is No Merit To Beulah Mae Harris7 
Contentions

The district court found that Harris' perjured affidavits 
were sanctionable not only under the bad faith standard but also 
under the rubric of Rule 11. 679 F. Supp. at 1392. The district
court found that Harris' affidavits were "[objectively and 
subjectively filed in bad faith" and were "filled with 
misstatements of fact." 679 F. Supp. at 1388. Although she does 
not challenge the district court's finding that the affidavits 
were perjured, Harris challenges the imposition of a sanction.
She apparently interprets Rule 11 not to permit the imposition of 
sanctions for the signing of affidavits. Blue/Harris Br. 23-24.

Harris' conclusory assertion that Rule 11 exempts affidavits 
from its coverage is unavailing. The terms of Rule 11 do not 
exclude affidavits and courts have not suggested that affidavits 
are outside Rule 11 's reach. See Palmer v. BRG of Georgia,— Inĉ _,

54



874 F.2d 1417, 1422 (11th Cir. 1989) (not error to refuse to 
impose Rule 11 sanctions for affidavit where the district court 
was unable to determine whether signer of affidavit intentionally- 
perjured himself); Calloway v. Marvel Entertainment Group, 854 
F.2d 1452, 1475 (2d Cir. 1988), reversed in part on other 
grounds, 110 S. Ct. 456 (1989) (not imposing Rule 11 sanctions
for affidavit because the sanity of the signer of the affidavit

13was m  doubt).
Harris also challenges the amount of the sanction imposed on 

her. Blue/Harris Br. 24-25. This argument too is without merit.
The amount of an attorneys' fee sanction is "within the 

judicial discretion of the trial judge who has close and intimate 
knowledge of the efforts expended and the value of the services 
rendered. And an appellate court is not warranted in overturning 
the trial court's judgment unless under all the facts and

13 To the extent that Harris is contending that, as a 
general matter, represented parties may not be sanctioned under 
Rule 11 for their improper signing of papers, that_interpretation 
of Rule 11 is also without merit. Harris' contention is not 
supported by the content of Rule 11 or the cases interpreting the 
Rule. Rule 11 nowhere exempts represented parties. As the 
Advisory Committee Notes state: "Rule 11 continues to apply to 
anyone who signs a pleading, motion or other paper." (emphasis 
added). In addition, courts have been willing to award Rule 11 
sanctions against represented parties, including represented 
parties who have perjured themselves. See Business Guides,— Inc.. 
v. Chromatic Communications Enterprises, Inc., No. 88-15240 (9th 
Cir. Dec. 21, 1989) (imposing sanctions on represented party); 
Bower v. Weisman. 674 F. Supp. 109, 112 (S.D.N.Y. 1987) (imposing 
Rule 11 sanction on represented party who signed a perjurious 
deposition transcript).

In any event, as we have pointed out, the Rule 11 issues m  
this case need not be addressed at all, because all of the 
district court's sanctions were an appropriate and proper 
exercise of the district court's inherent authority to impose 
sanctions for bad faith conduct of litigation.

55



Arnold v. Burger King Corp..circumstances it is clearly wrong."
719 F.2d 63, 67 (4th Cir. 1983) (quoting Barber v. Kimbrell's,
Inc.. 577 F.2d 216, 226 (4th Cir. 1978)), cert, denied, 469 U.S. 
826 (1984); see also Danik, Inc, v. Hartmarx, Corp., 875 F.2d 
890, 897 (D.C. Cir.), cert, granted. 110 S. Ct. 275 (1989) (the 
district court "exercises a virtually untrammelled discretion" as 
to the amount of fees imposed under Rule 11). Where, as here, 
the district court awards an amount no greater than the costs and 
attorney's fees incurred and the award is challenged as 
excessive, "only the very rarest case could justify our finding 
its decision an abuse of discretion." Danik, 875 F.2d at 897.

This is not that "very rarest" case. As the district court 
found, Harris expressly waived any right to raise an inability to 
pay defense to a sanctions award. 679 F. Supp. at 1370. The 
court found such waiver to be voluntarily, knowingly and 
intelligently executed. Ibid. Especially in light of her 
egregious perjury, Harris should not now be heard to complain 
about the size of the sanctions award.
V. APPELLANTS MAY NOT AVOID SANCTIONS FOR THEIR IMPROPER CONDUCT 

OF THIS LITIGATION SIMPLY BECAUSE THIS HAPPENS TO BE A TITLE 
VII CASE AGAINST THE FEDERAL GOVERNMENT
Appellants argue that even if they acted in bad faith, even 

if they violated Rule 11, even if they violated 28 U.S.C. § 1927, 
and even if they violated Rule 16, the district court did not 
have the authority to impose an attorney's fees sanction against 
them. Appellants contend that because this is a Title VII case 
against the federal government, the court was without power to

56



award a sanction of attorney's fees, even though plaintiffs 
committed perjury and they and their lawyers acted in bad faith. 
Chambers Br. 63-71. Appellants' argument is meritless.

Title VII's attorney's fees provision provides that in any 
Title VII action, "the court, in its discretion, may allow the 
prevailing party, other than the [EEOC] or the United States, a 
reasonable attorney's fee as part of the costs." 42 U.S.C. § 
2000e-5(k). The district court in this case stated that the 
government could not recover its attorney's fees under this 
provision. 679 F. Supp. at 1375. The district court held, 
however, that Title VII's fee provision does not preclude the 
exercise of the courts' inherent authority to impose an 
attorney's fees sanction for misconduct, particularly where, as 
here, plaintiffs and their lawyers engage in an abuse of the 
judicial process in violation of the bad-faith standard, Rule 11, 
28 U.S.C. § 1927, and Rule 16.

The district court's holding is correct; indeed, the 
district court's conclusion is in agreement with the decisions of 
the two courts of appeals that have addressed the question. In 
Copeland v. Martinez. 603 F.2d 981 (D.C. Cir. 1979), cert, 
denied. 444 U.S. 1044 (1980), the D.C. Circuit squarely held that 
the district courts may impose an attorney's fees sanction 
against a plaintiff who brings a Title VII action against the 
government and engages in bad faith in his conduct of the 
litigation. In an extensive opinion that carefully analyzes the 
statute's language, purpose and legislative history, the court

57



came to the completely unremarkable conclusion that Congress did 
not intend "to permit any abuse of the judicial process" in Title 
VII actions against the government (Copeland. 603 F.2d at 992 
n.69), and that "to infer such an intent * * * would plainly 
contradict one of the acknowledged purposes of [Title VII's fee 
provision] —  to 'deter the bringing of lawsuits without 
foundation'" (id. at 986) (quoting Christiansburg Garment, 434 
U.S. at 420).

The Fifth Circuit, in Butler v. Department of Agriculture, 
826 F.2d 409 (5th Cir. 1987), has followed Copeland. Referring 
to Copeland, the court in Butler stated that "[w]e agree that 
courts may award attorney's fees as sanctions for bad-faith 
litigation, including an award to the United States as defendant 
in a Title VII case." Butler. 826 F.2d at 414.

It is telling that appellants do not discuss Copeland and 
Butler. Indeed, except for a footnote in which appellants 
suggest that Copeland and Butler have somehow been "superseded" 
by two Supreme Court opinions that have nothing whatsoever to do 
with the issue,14 appellants do not even mention Copeland and

14 In Roadway Express, Inc, v. Piper. 447 U.S. 752 (1980), 
the Supreme Court held in pertinent part that the version of 28 
U.S.C. § 1927 then in existence did not provide for a sanction of 
attorney's fees. In New York Gaslight Club, Inc, v. Carey, 447 
U.S. 54 (1980), the Supreme Court held that "a federal court may 
allow the prevailing party attorney's fees for legal services 
performed in prosecuting an employment discrimination claim in 
state administrative and judicial proceedings that Title VII 
requires federal claimants to invoke." Id. at 56, 71. Neither 
of these two cases speaks to the question whether, in a Title VII 
action in which an agency of the federal government is the 
defendant, an attorney's fees sanction may be imposed on a

(continued...)
58



Butler. Chambers Br. 70 n.100. This Court should be aware, 
however, that in light of Copeland and Butler, appellants' 
contention, in order to prevail, would require this Court to go 
into conflict with the only two courts of appeals to have 
considered the question.

Appellants ignore not only the case law, but also common 
sense. Effectively, appellants contend that, in a Title VII 
action against the government, plaintiffs and their lawyers have 
a license to perjure themselves, to violate their Rule 11 
obligations, to violate their obligations to conduct discovery 
properly,15 and to otherwise act in bad faith, and that the 
district court is without the power to impose an attorney's fees 
sanction for such misconduct. In support of this limitation on 
the district court's authority that they propose, appellants 
suggest that our "national civil rights policy" demands it 
(Chambers Br. 14), in order to protect those persons who sue the 
government for Title VII violations —  persons who are Congress's 
"chosen instruments" for enforcing the civil rights laws 
(Chambers Br. 46) —  from the threat of sanctions.

The rationale that appellants offer is extremely ironic in 
light of the ugly facts of this case. Our "national civil rights

14(...continued)
plaintiff who engages in bad-faith litigation, or violates Rule 
11, 28 U.S.C. § 1927 or Rule 16.

15 see Chambers Br. 69 n.99; cf. Copeland. 603 F.2d at 991- 
992 n.68 ("We doubt it would be argued seriously that [Title 
VII's fee provision] preempts a recovery of fees under rule 
37.").

59



policy" (Chambers Br. 14) does not depend on perjury for its 
enforcement. Perjurers like Sandra Blue and Beulah Mae Harris 
are not Congress's "chosen instruments" (id. at 46) for anything. 
See Copeland. 603 F.2d at 990-991 (concluding that sanctions for 
bad faith litigation do not improperly chill legitimate civil 
rights suits); 679 F. Supp. at 1376 (same).

Not surprisingly, as appellants' own briefs confirm (and as 
the D.C. Circuit in Copeland found), there is not a shred of 
evidence to support the notion that, in enacting Title VII in 
1964 and amending it in 1972 to bring federal agencies within its 
coverage, Congress intended to foreclose the district courts from 
exercising their proper and legitimate authority to control the 
abuse of the judicial process by means of the imposition of an 
attorney's fees sanction under Rule 11, Rule 16, 28 U.S.C. § 1927 
or the bad-faith rule. See Copeland. 603 F.2d at 991-992 nn.68, 
69. Indeed, it is conspicuous that appellants do not even try to 
marshal support for their position by looking to the 
congressional intent underlying Title VII; to the contrary, 
appellants expressly disclaim any reliance on Title VII's 
legislative history. Chambers Br. 64. Instead, appellants focus 
entirely on a different statute altogether —  42 U.S.C. § 1988 —  
a statute which was not enacted until 1976. Chambers Br. 64-71 
(discussing 42 U.S.C. § 1988).

60



Appellants7 reliance on 42 U.S.C. § 1988 is badly 
misplaced.16 Section 1988 provides that the prevailing party 
(other than the United States) in an action brought under any one 
of certain specified statutes may recover his attorney's fees as 
part of the costs. But the federal government is not even 
subject to suit under most of those statutes. See, e.g.. Hohri 
v. United States. 782 F.2d 227, 245 n.43 (D.C. Cir. 1986) ("These 
statutes [42 U.S.C. §§ 1981, 1982, 1983, 1985 and 1986], by their 
terms, do not apply to actions against the United States.77), 
vacated on other grounds. 482 U.S. 64 (1987). Thus, unlike Title 
VII, under which the government of course may be sued as a 
defendant, the fee-shifting context presented by section 1988 is 
one in which, generally speaking, the government will not be a 
defendant in the underlying action on the merits.

That distinction between Title VII and section 1988 —  a 
distinction which is critical for present purposes and which 
appellants have utterly failed to come to grips with —  is both 
reflected in and confirmed by the fact that most (if not all) of 
the cases cited in appellants7 extended discussion of 42 U.S.C. § 
1988 do not involve the government as a defendant. Chambers Br. 
64-71. Those cases —  and appellants7 discussion —  are 
therefore for that reason alone entirely irrelevant to the issue

16 Appellants place great weight on certain snippets of the 
legislative history of 42 U.S.C. § 1988. Chambers Br. 64-65.
The D.C. Circuit in Copeland found these "casual subsequent 
remarks" to be inapposite to the question at issue regarding the 
interpretation of Title VII. Copeland, 603 F.2d at 989.

61



at hand, which concerns only the situation in which the
17government is a defendant in an action on the merits.

VI. THERE IS NO MERIT TO ATTORNEY SUMTER'S ARGUMENT THAT THEUNDERSTANDING IN THE DISTRICT COURT WAS THAT SANCTIONS COULD 
BE IMPOSED ONLY AGAINST HER CLIENTS AND NOT AGAINST HER
Attorney-Appellant Sumter argues that the district court was

without authority to impose sanctions against the lawyers in this
case; in Sumter's view, only the clients, not the lawyers, were
subject to sanctions. Sumter contends that the understanding in
the district court was that the government did not seek sanctions
against the lawyers, and that, in any event, the understanding in
the district court was that the government ultimately in effect
waived any such claim that it may have made. Sumter Br. 18-24.
It comes as no surprise that Julius Chambers, the other attorney-
appellant in this case, does not make this argument. The
argument contradicts both the record and common sense.

1. Appellants' own papers filed in the district court
reveal that appellants understood that the government obviously
was seeking sanctions not only against the plaintiffs, but also
against their lawyers. For example, in their May 21, 1984,
response to our sanctions motions —  a response that Sumter
signed (App. A-1075) —  appellants acknowledged that sanctions

17 In any event, even with, respect to a cause of action 
covered by section 1988 in which the federal government could be 
a defendant, we would strongly resist the notion that the 
district courts are precluded from imposing an attorney's fees 
sanction on a plaintiff who conducts litigation against the 
government in bad faith, or in violation of Rule 11, 28 U.S.C. § 
1927 or Rule 16. We do not read appellants' briefs to have shown 
that that notion is in fact the law.

62



may be imposed "against a party and his counsel under certain 
specified conditions" (App. A-1060), and that "the Court has 
inherent authority to impose sanctions where a party or his 
counsel [acts vexatiously or in bad faith]" (App. A-1062), but 
appellants stated that, in their view, "the conduct of counsel or 
the parties" (App. A-1073) was not sufficiently egregious in this 
case to warrant the imposition of sanctions. These repeated 
references to sanctions "against counsel" demonstrate rather 
vividly that appellants themselves were aware that sanctions were 
sought against the lawyers, not just against the plaintiffs. If, 
as Sumter now suggests, appellants were operating under the 
belief that the government was not seeking sanctions against 
counsel, then their papers would not have discussed sanctions 
against counsel.

In any event, the government's motions make crystal clear 
that sanctions were sought not only against the plaintiffs, but 
also their lawyers. For example, the government's submission of 
June 21, 1985, specifically states, among other things, that the 
government sought sanctions pursuant to the bad-faith exception 
and also "pursuant to Federal Rules of Civil Procedure 11 and 16, 
and 28 U.S.C. § 1927." Defendant's Request for an Award of 
Sanctions, filed June 21, 1985 (included in the record on appeal 
at Volume 68) at 1 (emphasis added); see also Defendant's 
Memorandum in Support of its Request at 2-3 (June 21, 1985) . The 
mention of 28 U.S.C. § 1927 is dispositive. By their terms, 
section 1927 sanctions cannot be sought against parties; they are

63



available only against lawyers. The government's express
invocation of section 1927 thus in and of itself makes
unambiguously clear that sanctions were sought not only against
the plaintiffs, but also against their lawyers. Had the
government been seeking sanctions only against parties, it would
not have invoked 28 U.S.C. § 1927. See also App. A-1061
(appellants' response of May 21, 1984, signed by Sumter,

18expressly discussing section 1927).
Our position is of course confirmed by the district court's 

own understanding. The district court stated that it was 
"painfully obvious" that the government sought sanctions against 
the lawyers as well as the plaintiffs. 679 F. Supp. at 1392.
The district court's contemporaneous understanding, unlike the 
argument that Sumter now makes in her appellate brief, is 
consistent with the papers that both sides filed below.

It is also consistent with common sense. As a matter of 
logic, it is extremely unpersuasive to suggest that the 
government decided to pursue sanctions only against the 
plaintiffs and not against the lawyers. As the district court 
found, the lawyers were inextricably involved in the egregious 
misconduct that took place in this case. Under these 
circumstances, it is simply not credible to suggest that the

18 Ms. Sumter states in her brief that the government's 
submission of June 21, 1985, "only requested fees against the 
clients." Sumter Br. 9. Since the government's submission 
expressly sought fees under 28 U.S.C. § 1927, Ms. Sumter's 
statement is just plain wrong.

64



government intended to exculpate the lawyers and sought sanctions 
only against their clients.

2. Sumter argues in the alternative that even if the 
government sought sanctions against the lawyers (and as we have 
shown the government clearly did), the government ultimately 
"waived" any such claims. Sumter Br. 23. According to Sumter, 
the "Final Agreement" of July 31, 1985, reveals an intent by the 
government to withdraw its claims for sanctions against the 
lawyers. Sumter Br. 23. Sumter seriously mischaracterizes that 
document.

The "Final Agreement" is reproduced in the Appendix that has 
been filed in this Court, at App. A-773 through A-776. The terms 
of that document reveal that it was drafted with the expectation 
that all parties to this litigation would agree to it, and that 
it would put an end to every aspect of this case. By its terms, 
the "Final Agreement" says that "the terms and conditions set 
forth [in this agreement] constitute a full and complete 
resolution of all matters alleged in this litigation." App. A- 
774. See 679 F. Supp. at 1237.

Ultimately, however, not all the parties agreed to the 
"Final Agreement." In particular, Sandra Blue and Beulah Mae 
Harris did not give their consent to it. But the "Final 
Agreement" was not redrafted to account for the nonacquiescence 
of Sandra Blue and Beulah Mae Harris. Their names were simply 
crossed out, by hand, from the collection of plaintiffs' names

65



that had been listed in the document. App. A-773 n.l (Blue);
App. A-773 n.2 (Harris).

The question, then, is how to interpret the "Final 
Agreement" in light of the fact that Sandra Blue and Beulah Mae 
Harris decided not to participate in it. The answer is simple. 
Because Sandra Blue and Beulah Mae Harris opted out of the "Final 
Agreement," no matter regarding Blue's case or Harris' case was 
disposed of by the "Final Agreement." In particular, the 
government's motions seeking sanctions in connection with the 
Blue and Harris claims were not disposed of. And those motions, 
as we have shown, contemplated sanctions not only against Blue 
and Harris themselves, but also against their lawyers. It 
follows therefore that the "Final Agreement" in no way precluded 
the government's request for sanctions against the lawyers that 
were made in connection with the Blue and Harris cases.

Any other reading of the "Final Agreement" would be 
unreasonable. The government, along with our opponents, prepared 
the "Final Agreement" with the expectation that all of the 
plaintiffs would join it and that this entire litigation, in all 
of its aspects, would come to an end. For their own reasons, 
Sandra Blue and Beulah Mae Harris chose, unlike their fellow 
plaintiffs, not to be parties to the agreement. It borders on 
the absurd to suggest that the decisions of Sandra Blue and 
Beulah Mae Harris to opt out —  unilateral decisions that were 
totally beyond the control of the government —  somehow manifest 
an intent bv the government to withdraw its request for sanctions

66



against the lawyers that had been made in connection with the 
Blue and Harris cases.

The district court of course believed no such thing. The 
district court obviously was not under the impression that the 
government somehow had intended to "waive" (Sumter Br. 23) its 
claims for sanctions against the lawyers. The district court 
participated in and oversaw the negotiations that led to the 
"Final Agreement," and under the circumstances the district 
court's own understanding in and of itself should be given 
substantial, even dispositive, weight.

In sum, even though the district court found that this case
involved egregious misconduct warranting sanctions against
plaintiffs and their lawyers. Sumter apparently is now willing to
let her clients alone be sanctioned for this behavior. The
government maintains, however, as it has throughout this
litigation, that Sumter may not escape responsibility for her own
sanctionable conduct. That is what the district court
understood, that is what the record reflects, and that is what
common sense suggests. It would be profoundly wrong for this
Court now to embrace Sumter's self-serving rewriting of history.
VII. IT WAS NOT IMPROPER FOR THE DISTRICT COURT TO IMPOSE A 

SANCTION AGAINST THE LAW FIRM
The district court assessed a separate sanction of $1,413.62 

against the sanctioned attorneys' law firm. That small sanction 
was not improper.

1. The Supreme Court, in its recent decision in Pavelic & 
LeFlore v. Marvel Entertainment Group. 110 S. Ct. 456 (1989), has

67



held that law firms, as opposed to individual attorneys, are not 
subject to sanctions under Rule 11. Thus, to the extent that the 
district court's sanction against the law firm was rooted in Rule 
1 1 , Pavelic & LeFlore dictates that that sanction is not valid.

Pavelic & LeFlore. however, deals only with sanctions 
imposed under Rule 11. Essentially, the Court reasoned that Rule 
11's language imposes an obligation upon the individual, signing 
attorney. 110 S. Ct. at 458-459. Thus, the Court concluded, it 
is individual attorneys, and not law firms, that are subject to 
sanctions under Rule 11.

Given that the Supreme Court's rationale in Pavelic &
LeFlore focuses on the specific language of Rule 11 and the 
signing requirement that is peculiar to Rule 11, it would seem 
that the holding of Pavelic & LeFlore is limited to Rule 11.
Thus, the sanction that was imposed upon the law firm in this 
case should not be precluded by Pavelic & LeFlore. The sanctions 
in this case were issued not only under Rule 11, but also under 
the bad-faith standard, 28 U.S.C. § 1927 and Rule 16.

2. In any event, turning to the factual setting that is 
presented in this case, it bears emphasis that the small sanction 
that the district court imposed against the law firm must be 
viewed in light of the representations that the law firm made to 
the district court. In the district court the law firm asserted 
explicitly that it would be appropriate for it to be sanctioned 
in lieu of, or along with, the firm's individual attorneys. See 
123 F.R.D. at 213-214. As the firm explained, its attorneys were

68



at all times acting on behalf of the firm; the firm itself stood 
to recover a fee award if the plaintiffs had prevailed in this 
lawsuit; and it was therefore appropriate for the firm itself to 
be held responsible for sanctions arising from its attorneys' 
misconduct. See Transcript of April 1, 1988, at 71-72. Given 
its representations to the district court, the firm should not 
now be heard on appeal to complain that the district court acted 
improperly in requiring the firm to shoulder a very small part of 
the sanctions burden arising from its attorneys' misconduct. See 
Chambers Br. 87-88.
VIII. THE DISTRICT COURT DID NOT EXCEED ITS AUTHORITY INORDERING THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND NOT 

TO PAY ANY SANCTIONS
Appellant LDF contends that the district court exceeded its 

authority when it ordered LDF not to pay the individual 
attorneys' sanctions. Although the government did not seek such 
an order, we nevertheless briefly respond to LDF's argument.

LDF's brief paints an inaccurate picture of the involvement 
that LDF has had in this litigation. LDF suggests that it 
participated in this litigation "only through the limited work of 
a part time staff attorney." LDF Br. 5. Consequently, LDF 
argues, its connection with this case was so remote that the 
district court did not have the authority to issue any orders of 
any kind against it. A review of the record demonstrates the 
inaccuracy of LDF's factual assertion.

Over a period of years, several attorneys affiliated with 
the LDF served as counsel representing the plaintiffs in this

69



case. These attorneys include Jack Greenberg (App. A-56),
Charles Stephen Ralston (App. A-56), Gail Wright (App. A-776), 
Penda Hair (123 F.R.D. at 219), and, of course, Julius Chambers 
himself (App. A-734, A-776, signing in his capacity as an LDF 
attorney^. These lawyers are listed in the signature blocks of 
some of the important pleadings in this case, including, for 
example, the Complaint (App. A-56), as well as the "Final 
Agreement" of July 31, 1985 (App. A-776). What is more, the 
record shows that LDF lawyers not only signed pleadings, but at 
least on some occasions did so in the name of the LDF and in 
their capacity as LDF attorneys. See, e.g., App. A-734, A-776; 
see also, e.g.. App. A-1897. Cf. LDF Br. 7-8. Thus, contrary to 
the suggestions in its brief, the LDF is hardly a stranger to 
this lawsuit.

It is not insignificant, moreover, that Julius Chambers was 
employed by the LDF at the time that the district court issued 
its decision imposing sanctions. Mr. Chambers apparently left 
the law firm and became "Director-Counsel" of the LDF while the 
district court proceedings in this case were taking place. 123 
F.R.D. at 215. The district court's order, in effect forbidding 
Chambers' current employer from paying his sanctions, is in line 
with the Supreme Court's recent teaching in Pavelic & LeFlore 
that the deterrent value of a monetary sanction is heightened to 
the extent that an individual attorney is rendered personally 
accountable for his own misconduct. See 110 S. Ct. at 460.

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It is true, of course, that the district court allowed the 
law firm to pay up to three quarters of the individual attorneys' 
sanctions. 679 F. Supp. at 1392. But the law firm, unlike the 
LDF, was itself implicated in the misconduct that led to the 
imposition of sanctions; misconduct was committed by Chambers and 
Sumter in their capacity as lawyers of the firm and the firm was 
itself sanctioned. In our view, it is appropriate for a district 
court to allocate sanctions in a way that will tend to result in 
payment by entities who share the blame for the wrongdoing, as 
opposed to entities, like the LDF, who have not been found to be

71



implicated in the sanctionable conduct.
223. 19

Accord 123 F.R.D. at

19 We have focused in this brief on showing that the 
district court quite clearly did not err in awarding the 
sanctions that the government moved for. However, as appellants 
point out, the district court also imposed sanctions to reflect 
the cost of the court's own time that was consumed in this 
litigation. 679 F. Supp. at 1324, 1364-1365. The government did 
not request that the court impose such sanctions. We would note, 
however, as did the district court (679 F. Supp. at 1324-1325;
123 F.R.D. at 224 n.20), that there is precedent to support such 
sanctions. See, e.a.. Baker. 744 F.2d at 1442 (affirming 
sanction under Rule 16 based on estimated expense to the court); 
National Association of Radiation Survivors v. Turnaqe, 115 
F.R.D. 543, 559 (N.D. Cal. 1987) (ordering defendant pursuant to 
Rule 11 and Rule 37 to pay $15,000 for "unnecessary consumption 
of the court's time and resources"); Kearns v. Ford Motor Co.,
114 F.R.D. 57 (E.D. Mich. 1987) (imposing $24,000 fine, reduced 
to $10,000, for waste of court's time pursuant to Rule 37(b)(2) 
and court's inherent authority); Robinson v. Moses, 644 F. Supp. 
975, 982-983 (N.D. Ind. 1986) (assessing $3,600 fine under Rule 
11 for court's own time); Thiel v. First Federal Savings & Loan 
Association. Inc.. 646 F. Supp. 592, 598 (N.D. Ind. 1986) (fining 
plaintiffs $3,600 under Rule 11 for court's time), affirmed in_ 
part and dismissed in part without opinion. 828 F.2d 21 (7th Cir. 
1987) ; Itel Containers International Corp. v. Puerto Rico Marine 
Management, 108 F.R.D. 96, 106 (D.N.J. 1985) (assessing $5,000 
fine for chamber and court time pursuant to Rules 7, 11, 26(g) 
and 28 U.S.C. § 1927). See also White v. Raymark Industries,
Inc.. 783 F.2d 1175 (4th Cir. 1986) (recognizing trial court's 
authority under local rules to impose the cost of impanelling a 
jury upon a party causing unjustified delay); Eash v. Riggins 
Trucking. Inc.. 757 F.2d 557 (3d Cir. 1985) (en banc) _(with 
proper notice and opportunity to be heard, using its inherent 
authority, court may impose the costs to impanel the jury on 
counsel who caused delay).

In Rav A. Scharer & Co. v. Plabell Rubber Products, 858 F.2d 
317 (6th Cir. 1988), which appellants cite (Chambers Br. 73), the 
district court had imposed a sanction of $19,200 for the cost of 
the court's wasted time. Id. at 320. The court of appeals set 
aside the assessment of sanctions and remanded the matter to the 
district court for further proceedings. Id. at 322. The court 
of appeals reasoned that the district court "made no definitive 
finding of 'bad faith'" (id. at 321), and had not given "adequate 
notice and opportunity to be heard under the circumstances" (id. 
at 322), and that a remand was therefore appropriate. The court 
of appeals stated that "[w]e doubt * * * that the court may or 
should assess its 'costs of operation' as sanctions especially

(continued...)
72



CONCLUSION
For the foregoing reasons, the judgment of the district 

court should be affirmed.
Respectfully Submitted,
STUART M. GERSON
Assistant Attorney General

J. MARGARET P. CURRIN 
United States Attorney

ROBERT S. GREENSPAN 
(202/FTS)633-5428

THOMAS M. BONDY
(202/FTS)633-2397 
Attorneys. Appellate Staff 
Civil Division. Room 3617 
Department of Justice 
Washington, D.C. 20530

JANUARY 199020

1 QA (. . .continued)
without a full opportunity for the offending party or parties to 
be assessed to be heard or to the challenge the basis and 
reasonableness of such sanction." Id. at 321. Here, of course, 
there are very "definitive" findings of bad faith, and the 
district court conducted a separate hearing just for the purpose 
of determining whether sanctions were warranted.

20 The Department of Justice acknowledges the assistance of 
Jennifer H. Zacks, an Appellate Staff attorney who participated 
substantially in the preparation of this brief.

73



CERTIFICATE OF SERVICE
I hereby certify that on this 19th day of January 1990, I 

served the foregoing "BRIEF FOR APPELLEES" upon counsel for 
Appellants by causing two copies to be mailed, by first-class 
mail, postage prepaid, to:

Counsel for appellant Beulah Mae Harris:
Cressie H. Thigpen, Jr., Esq.
205 Fayetteville Street Mall, Suite 300 
Post Office Box 1730 
Raleigh, NC 27602

Counsel for appellant Sandra L. Blue:
William C. McNeil, III, Esq. 
Employment Law Center 
1663 Mission Street, Suite 400 
San Francisco, CA 94103

Counsel for appellant Julius L. Chambers (and the 
law firm of Fercruson, Stein. Watt, Wallas & Adkins) :
Bonnie Kayatta-Steingart, Esq.
Fried, Frank, Harris, Shriver & Jacobson 
One New York Plaza 
New York, NY 10004

Counsel for appellant Geraldine Sumter:
George Cochran, Esq.
Law Center
University, Mississippi 38677
Morton Stavis, Esq.
Center for Constitutional Rights
666 Broadway
New York, NY 10012



Counsel for appellant NAACP Legal Defense & 
Educational Fund. Inc.:
Barrington D. Parker, Jr., Esq.
Morrison & Foerster
1290 Avenue of the Americas
New York, NY 10104

TH
Attorney for Defendants-Appellees 
(202)/FTS 633-2397