Lucas v. Duncan

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 11, 2008 Decided July 31, 2009

No. 07-5264

THEODORE R. LUCAS, ET AL.,

APPELLANTS

v.

ARNE DUNCAN, IN HIS OFFICIAL CAPACITY AS SECRETARY,

U.S. DEPARTMENT OF EDUCATION, HIS AGENTS AND

SUCCESSORS,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 01cv02393)

John F. Karl, Jr. argued the cause and filed the briefs for

appellant.

Richard R. Renner was on the brief for amicus curiae

National Employment Lawyers Association in support of

appellant.

Mercedeh Momeni, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Jeffrey A. Taylor,

U.S. Attorney, and R. Craig Lawrence and Yule Kim, Assistant

U.S. Attorneys.

2

Before: GINSBURG, GARLAND, and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: This is an appeal from an order

imposing sanctions against an attorney under Rule 11 of the

Federal Rules of Civil Procedure. A magistrate judge imposed

the sanctions for statements that the attorney made in pleadings

he filed on behalf of his client, the plaintiff in an employment

discrimination suit. For the reasons stated below, we vacate the

sanctions order.

I

Attorney John F. Karl, Jr.’s client, Theodore Lucas, was an

employee in the Department of Education’s Office of Civil

Rights. In 1998, Lucas applied for a promotion to a position as

a management and program analyst. At that time, he was 61

years old and had both a law degree and more than 25 years’

experience in civil rights enforcement. The promotion went to

Jerelyn Berry, a 43-year-old high school graduate, who had

never attended college and who had previously worked as

Lucas’ secretary.

On November 16, 2001, Lucas sued the Secretary of

Education under the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. §§ 621 et seq., alleging that he was denied

the promotion because of his age. Pursuant to 28 U.S.C.

§ 636(c)(1), the parties consented to proceed before a United

States magistrate judge for all purposes. Following discovery,

the Department filed a Motion for Summary Judgment and a

Statement of Material Facts Not in Dispute. The Department’s

motion asserted that Berry’s selection was based principally on

3

interviews with the candidates and that Berry had outperformed

Lucas in those interviews.

Karl filed an opposition on Lucas’ behalf. The opposition

consisted of the following: a 35-page memorandum, entitled

Plaintiff’s Opposition to Defendant’s Motion for Summary

Judgment; a 104-paragraph document, entitled Plaintiff’s

Statement of Material Facts in Dispute and Material Facts

Omitted by Defendant; an affidavit by Lucas; and numerous

supporting exhibits. Lucas’ papers asserted that there was direct

evidence of discrimination: he said that at his selection panel

interview, the selecting official -- Dr. Paul Fairley -- called

Lucas an “old timer” and told him, “[y]ou know what this is all

about.” Pl.’s Statement of Material Facts in Dispute and

Material Facts Omitted by Def. ¶ 78 [hereinafter Pl.’s Rule 7(h)

Statement]. But Lucas primarily relied on circumstantial

evidence, including that he was substantially more qualified than

Berry and that she had been preselected before the interviews.

As to the latter, Lucas contended that there was evidence

indicating that Berry had received interview questions in

advance and had been coached regarding how to respond, and

that Fairley had created after-the-fact interview notes to support

the preordained result.

On September 28, 2004, the magistrate judge issued an

order requiring Karl to show cause why he had not violated

Federal Rule of Civil Procedure 11(b)(3). That rule obligates an

attorney to certify as to any written submission that, “to the best

of the person’s knowledge, information, and belief, formed after

an inquiry reasonable under the circumstances: . . . (3) the

factual contentions have evidentiary support or, if specifically so

identified, will likely have evidentiary support after a reasonable

opportunity for further investigation or discovery.” FED. R. CIV.

P. 11(b)(3). The magistrate judge identified twelve statements

in the papers Karl filed on behalf of Lucas that the judge

4

believed ran afoul of Rule 11(b)(3). The order was issued sua

sponte, without a motion from the defendant suggesting that

there was a Rule 11 problem in the plaintiff’s pleadings. Karl

filed a response to the order to show cause on December 2,

addressing each of the statements that the order had highlighted

as problematic.

On January 10, 2006, the magistrate judge issued a

Memorandum Opinion and Order, in which he accepted Karl’s

explanation of a proofreading mistake in one of the twelve

statements, but imposed sanctions on the basis of the other

eleven. Lucas v. Spellings, 408 F. Supp. 2d 8 (D.D.C. 2006).

The judge held, inter alia, that “Karl’s statements obliterate

again and again the distinction between drawing an inference

and stating a fact and must therefore be condemned as a

violation of the requirement of Rule 11 that the factual

allegations in a document have evidentiary support.” Id. at 13.

The judge imposed a monetary sanction of $3000 and referred

Karl to the United States District Court’s Committee on

Grievances to determine whether he violated the District of

Columbia Rules of Professional Conduct.1 Id. at 26-27.

1

Appellant’s brief represents that the District Court Committee on

Grievances has advised Karl that the committee “decided, after careful

review, that no further action is warranted as a result of the January

13, 2006 referral.” Appellant’s Br. 6 n.3. The brief further represents

that the D.C. Office of Bar Counsel has advised Karl that: (1)

“Because you filed an appropriate pleading to challenge the

defendant’s motion seeking to have your client’s civil suit dismissed,

we are unable to conclude by clear and convincing evidence that your

conduct violated Rule 8.4(d)”; and (2) “there is insufficient evidence

to support a finding that your conduct in drafting and filing the

plaintiff’s opposition to the motion for summary judgment violated

Rule 3.1.” Id.

5

The magistrate judge subsequently denied the Department

of Education’s summary judgment motion, and the case went to

trial. At the close of the bench trial, the judge ruled in favor of

the Department, and the plaintiff has filed an appeal that brings

before us the interlocutory rulings that preceded the court’s final

judgment. See Ciralsky v. CIA, 355 F.3d 661, 668 (D.C. Cir.

2004). Lucas does not challenge his loss on the merits, and the

sole issue on appeal is the appropriateness of the Rule 11

sanctions imposed on attorney Karl.

II

In Cooter & Gell v. Hartmarx Corp., the Supreme Court

held that appellate courts “should apply an abuse-of-discretion

standard in reviewing all aspects of a district court’s Rule 11

determination.” 496 U.S. 384, 405 (1990). The Court noted,

moreover, that “[a] district court would necessarily abuse its

discretion if it based its ruling on an erroneous view of the law

or on a clearly erroneous assessment of the evidence.” Id.; see

FED. R. CIV. P. 11, Advisory Comm. Notes (1993) (same).

Cooter & Gell involved sanctions imposed by the court

upon motion of the opposing party. See FED. R. CIV. P. 11(c)(2).

This case, by contrast, involves sanctions imposed by the court

sua sponte, without motion of the opposing party. See FED. R.

CIV. P. 11(c)(3). In recognition of the unusual position of the

trial court in such circumstances, serving at once as both

prosecutor and judge, the circuit courts have utilized different

linguistic formulations to express the same idea: when the trial

court imposes sanctions sua sponte, the reviewing court should

engage in “careful appellate review” to assess whether there was

an abuse of discretion. Young v. City of Providence ex rel.

Napolitano, 404 F.3d 33, 40 (1st Cir. 2005); see Kaplan v.

DaimlerChrysler, A.G., 331 F.3d 1251, 1255 (11th Cir. 2003)

(holding that “[s]ua sponte Rule 11 sanctions . . . must be

6

reviewed with particular stringency” (internal quotation marks

omitted)); Hunter v. Earthgrains Co. Bakery, 281 F.3d 144, 153

(4th Cir. 2002) (holding that, where a sanction “was imposed

sua sponte, we must examine the court’s assertion that [the

plaintiff’s] legal contention was frivolous with particular

stringency” (internal quotation marks omitted)).

Although both Karl and the Department of Education agree

that this court should review the magistrate judge’s order for

abuse of discretion with particular care, see Oral Arg. Recording

at 32:15-32:30, they disagree as to the substantive standard that

the judge should himself have applied. Karl notes that Rule

11(c)(2), which governs Rule 11 sanctions initiated upon a

party’s motion, contains a “safe harbor” provision that permits

the filer to avoid sanctions by withdrawing or correcting the

challenged pleading within 21 days. Rule 11(c)(3), which

governs sanctions imposed on the court’s own initiative, does

not contain such a provision. In light of this difference, and

citing language in the Advisory Committee notes, Karl argues

that only actions “akin to a contempt of court” should be subject

to the sua sponte imposition of Rule 11 sanctions.2 Citing the

language of the rule itself,3 which does not distinguish between

sanctions imposed after motion or sua sponte, the Department

argues that the standard under which an attorney’s actions must

be measured is in all cases “an objective standard of

2

See FED. R. CIV. P. 11, Advisory Comm. Notes (1993) (“Since

show cause orders will ordinarily be issued only in situations that are

akin to a contempt of court, the rule does not provide a ‘safe harbor’

to a litigant for withdrawing a claim, defense, etc., after a show cause

order has been issued on the court’s own initiative.”).

3

See FED. R. CIV. P. 11(b) (In presenting a pleading, an attorney

certifies that “to the best of the person’s knowledge, information, and

belief, formed after an inquiry reasonable under the circumstances,”

the factual contentions have evidentiary support.).

7

reasonableness under the circumstances.” Appellee’s Br. 6

(citing Bus. Guides v. Chromatic Commc’ns Enters., Inc., 498

U.S. 533, 551 (1991)). That is the standard the magistrate judge

applied. See Lucas, 408 F. Supp. 2d at 11 (“Rule 11 requires . . .

a determination as to whether, judged by the standard of a

reasonable party or lawyer, the party or lawyer offended one of

the rule’s provisions. . . . Rule 11 . . . is based upon an objective

evaluation of the lawyer’s conduct.”).

Both sides have support for their positions in the case law.4

We need not enter this debate, however, because the sanctions

order requires reversal regardless of which standard applies. As

discussed below, the determination that the eleven statements

violated Rule 11 was premised on two legal errors. And a trial

court “necessarily abuse[s] its discretion if it base[s] its ruling

on an erroneous view of the law.” Cooter & Gell, 496 U.S. at

405.

A

As the magistrate judge explained, the principal basis upon

which he imposed sanctions was his finding that many of the

eleven statements that Karl drafted were “classic examples of

inferences disguised as statements of fact.” Lucas, 408 F. Supp.

2d at 12. “[A] classic misstatement,” he said, “is one in which

an inference that might or might not be drawn from the facts is

stated as a fact itself.” Id. The judge illustrated this point

with the following example:

4

Compare cases adopting the “akin to contempt” standard, e.g.,

Kaplan, 331 F.3d at 1256; In re Pennie & Edmonds LLP, 323 F.3d 86,

90 (2d Cir. 2003), with cases applying an objective reasonableness

standard, e.g., Jenkins v. Methodist Hosps. of Dallas, 478 F.3d 255,

264 (5th Cir. 2007); Young, 404 F.3d at 39.

8

[T]hat a man walks into a room with a wet umbrella

might permit the inference that the man was recently

outside and that it was raining. It might also be true

that the man decided to wash the umbrella. Given

these facts, an advocate cannot first say “it was

raining” but later, when challenged, explain that what

was originally stated as a fact was actually only an

inference that could have been drawn from the fact that

the umbrella was wet. The statement, “it was raining”

is objectively false. It asks the reader to believe that

what is merely an inference that may be drawn from a

set of facts is itself a fact.

Id. at 12-13. Citing a Ninth Circuit decision, which in turn

quoted a 1954 New Jersey Supreme Court opinion, the

magistrate judge held that “[w]hen he is indulging, as he has

every right to do, in inferences or reasoning from the facts, [an

attorney] must say so.” Id. at 13 (quoting In re Curl, 803 F.2d

1004, 1006 (9th Cir. 1986) (quoting In re Greenberg, 104 A.2d

46, 47-48 (N.J. 1954))).5

5

The magistrate judge quoted Karl’s statements and then

explained why he found that they improperly conflated inferences and

facts. For example, Karl stated that “[e]xamination of the interview

notes certainly supports a finding that Ms. Berry was given the

interview questions” in advance. 408 F. Supp. 2d at 14. The judge

imposed sanctions on the ground that “[e]quating what counsel claims

is a fact -- that the notes show that Berry had the questions -- with a

series of inferences drawn from all the other evidence (including the

notes) is the very vice condemned as sanctionable conduct.” Id. In

another statement, Karl said that “Fairley refused to respond” to

interrogatories. Id. at 17. For that statement, the judge imposed

sanctions on the ground that, although “at one point Fairley failed to

answer[,] . . . [t]o derive from his not answering the declaratory

statement that he refused to answer . . . states as a fact what may or

may not be true.” Id. at 18. Karl also stated that “[t]here is

9

There is no basis in the text of Rule 11(b)(3) for the legal

proposition that an attorney must separately identify “fact” and

“inference.” The Rule merely requires an attorney to certify that

the factual contentions in a paper he presents to the court “have

evidentiary support.” FED. R. CIV. P. 11(b)(3). “Inferences” --

which are commonly described as “circumstantial evidence” --

are as capable of providing evidentiary support as “facts” --

which are commonly described as “direct evidence.”6 See U.S.

Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 n.3

(1983) (“As in any lawsuit, the plaintiff may prove his case by

direct or circumstantial evidence.”); Doe v. U.S. Postal Serv.,

317 F.3d 339, 343 (D.C. Cir. 2003) (“[W]e generally draw no

distinction between the probative value of direct and

circumstantial evidence.”). As a consequence, “juries are

circumstantial evidence sufficient to create an inference that the

interview notes” that Fairley ultimately produced “were manufactured

after the fact to justify a decision previously made on discriminatory

grounds.” Id. The magistrate judge sanctioned Karl on the ground

that the statement impermissibly “equate[d] a fact -- that Fairley did

not take contemporaneous notes -- with a conclusion -- that Fairley

concocted notes afterwards to hide his preference for Berry because

she was younger than” Lucas. Id. at 19. Karl was also sanctioned for

stating that “the requirements of the job [were] watered down . . . in

order to make Ms. Berry appear to be qualified,” because the judge

found that statement was based only on an inference from the fact that

the requirements “were modified to uniformly reduce the value of all

the [prior] criteria by 0.5 in order to permit the addition of a new

category for evaluation.” Id. at 15.

6

See BAR ASS’N OF D.C., STANDARDIZED CIVIL JURY

INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA (rev. ed. 2002) § 2.10

(“Direct evidence is the direct proof of a fact, such as the testimony of

an eyewitness. Circumstantial evidence is indirect evidence of a fact

which is established or logically inferred from a chain of other facts

or circumstances.” (emphasis added)).

10

routinely instructed that ‘[t]he law makes no distinction between

the weight or value to be given to either direct or circumstantial

evidence.’” Desert Palace, Inc. v. Costa, 539 U.S. 90, 100

(2003) (quoting 1A K. O’MALLEY, J. GRENIG & W. LEE,

FEDERAL JURY PRACTICE AND INSTRUCTIONS, CRIMINAL § 12.04

(5th ed. 2000)). “The reason for treating circumstantial and

direct evidence alike,” the Supreme Court has explained, “is

both clear and deep rooted: ‘Circumstantial evidence is not only

sufficient, but may also be more certain, satisfying and

persuasive than direct evidence.’” Id. (quoting Rogers v. Mo.

Pac. R.R. Co., 352 U.S. 500, 508 n.17 (1957)).

It is also relevant that Karl filed his opposition to summary

judgment pursuant to Local Rules 7(h) and 56.1. Those rules

require that “[a]n opposition to such a motion shall be

accompanied by a separate concise statement of genuine issues

setting forth all material facts as to which it is contended there

exists a genuine issue necessary to be litigated, which shall

include references to the parts of the record relied on to support

the statement.” D.D.C. LOCAL RULE 7(h) (emphasis added); id.

56.1 (same). Karl adhered to the rules, and each of the criticized

sentences in Karl’s Rule 7(h) Statement was followed by record

citations indicating which evidence Karl thought supported the

statement.7 Thus, there was no hiding of the ball. Even if it

mattered whether the supporting evidence was direct or

circumstantial (and it does not), there was no possibility that the

reader would be misled.

7

Five of the sentences that the magistrate judge criticized were

included in Karl’s Opposition memorandum, rather than in the

Statement, and hence arguably were not subject to Rule 7(h).

Nonetheless, two of the five were followed by record citations, two

referenced attached exhibits, and the last simply asserted a failure of

explanation on the part of the agency.

11

There is, then, nothing in Rule 11 that required Karl’s

pleadings to distinguish between direct and circumstantial

evidence. Nor does judicial precedent require such a distinction.

The quotation from the 1954 New Jersey Supreme Court opinion

is inapplicable, as that court was applying canons of professional

responsibility and not a Federal Rule. See In re Greenberg, 104

A.2d at 48-49. Likewise inapposite is the Ninth Circuit’s

opinion in Curl, which contains the quotation from the New

Jersey court: in Curl, the circuit admonished an attorney for

misrepresenting the content of a Mexican judicial decision, not

for failing to distinguish between kinds of evidence. In re Curl,

803 F.2d at 1006 (finding that the attorney represented that a

Mexican appellate court had “affirmed the lower court,” when

it had not).8 And even if a code of professional responsibility

did require making such a distinction (although the District of

Columbia’s code apparently does not, see supra note 1), Rule 11

does not incorporate such codes,9 and the magistrate judge

8

Also inapplicable are the other precedents the magistrate judge

cited for the proposition that Rule 11 requires a lawyer to “distinguish

a fact from an inference he seeks to press on the court.” Lucas, 408 F.

Supp. 2d at 13 (quoting Skycom Corp. v. Telstar Corp., 813 F.2d 810,

819 (7th Cir. 1987)). See Skycom, 813 F.2d at 819 (stating that “[i]t

is unprofessional conduct to represent inferences as facts” (emphasis

added)); In re Kelly, 808 F.2d 549, 551 (7th Cir. 1986) (imposing

discipline for “conduct unbecoming a member of the bar” under

Federal Rule of Appellate Procedure 46(c), for presenting “a shot in

the dark, a guess, . . . as positive fact, though [the attorney] made no

effort to determine whether it was fact”); see also In re: Cent. Ice

Cream Co., 836 F.2d 1068, 1073 (7th Cir. 1987) (indicating that

counsel violates Rule 11 by presenting “as a fact what counsel thinks

should have occurred” (emphasis added)).

9

See Zaldivar v. City of Los Angeles, 780 F.2d 823, 829-30 (9th

Cir. 1986) (“Rule 11 is not a panacea intended to remedy all manner

of attorney misconduct occurring before or during the trial of civil

12

stressed that he based his authority “to punish [Karl] solely on

Rule 11.” Lucas, 408 F. Supp. 2d at 11.

In short, the basic legal premise upon which sanctions were

imposed was incorrect. To take the magistrate judge’s example:

If an attorney has evidence that a man “walked into a room with

a wet umbrella” at a certain time, the attorney does have

“evidentiary support” for the “factual contention” that “it was

raining” at that time. Id. at 12.10 He may not have proof by a

preponderance, but he certainly has “support.” Accordingly, a

lawyer does not violate Rule 11 by saying so.

B

The magistrate judge also imposed sanctions on the premise

that, when an attorney makes a factual contention, he must

simultaneously disclose evidence that is contrary to that

contention. The judge thought that Karl’s failure to do so

violated Rule 11, notwithstanding that he did have affirmative

evidentiary support for his contentions.

For example, as evidence to show that Berry’s promotion

was not based on a fair competition, Karl stated: “Ms. Berry

received the interview questions and coaching from

[Management and Program Analyst] Art Besner prior to her

cases.”).

10

Cf. STANDARDIZED CIVIL JURY INSTRUCTIONS FOR THE

DISTRICT OF COLUMBIA § 2.10 (“For example, direct evidence of

whether an animal was running in the snow might be the testimony of

a person who actually saw the animal in the snow. Circumstantial

evidence might be the testimony of a person who saw the tracks of the

animal in the snow, rather than the animal itself. . . . The law makes

no distinction between the weight to be given [to] either . . . .”).

13

interview.” Pl.’s Rule 7(h) Statement ¶ 85. In support, Karl

cited evidence, which the magistrate judge described as follows:

Both Mr. Lucas and [fellow employee] Ms. Powell

heard Ms. Berry thank Mr. Besner for giving her the

interview questions prior to the interview and telling

her how to prepare for the interview. Mr. Lucas heard

Mr. Besner tell Ms. Berry that he “hoped” he “helped

her” prepare for the interview, and Ms. Berry replied

that he did, and “thank you very much.”

Lucas, 408 F. Supp. 2d at 23 (internal citations omitted)

(quoting Pl.’s Rule 7(h) Statement ¶ 86). The magistrate judge

did not disagree that Karl had such evidence, and in fact he

did.11 But the judge imposed sanctions because “the reader is

never told about the information that, at the barest minimum,

indicates that there are serious reasons to doubt the truthfulness

of the assertion that Besner gave Berry the questions: the

inconsistencies in plaintiff’s testimony and Besner’s insistence,

confirmed by [selection panel member Jan] Gray, that Besner’s

questions were not the ones used in the interview.” Lucas, 408

F. Supp. 2d at 24.

In a similar vein, Karl asserted that Berry had been

preselected for the position before Lucas was interviewed. See

11

In his deposition, Lucas testified that he overheard a

conversation in which Besner asked Berry, “Did the material or did

the questions help you in the interview[?]” Lucas Dep. 142 (Dec. 20,

2002); see also id. at 143-44. Powell’s sworn declaration states that

she overheard a conversation between Besner and Berry in which,

“Ms. Berry thanked Mr. Besner for his assistance in giving her the

information he had given to her prior to the interview and telling her

what to study and how to prepare for the interview.” Powell Decl.

¶ 13 (Dec. 6, 1999).

14

Goostree v. Tennessee, 796 F.2d 854, 861 (6th Cir. 1986)

(“Evidence of preselection operates to discredit the employer’s

proffered explanation for its employment decision.”). In the

Rule 7(h) Statement, Karl wrote: “Dr. Fairley told Ms. Berry at

her interview that she had been selected for the position, even

though she was interviewed more than an hour before Mr.

Lucas.” Pl.’s Rule 7(h) Statement ¶ 78. To support this

assertion, Karl cited Berry’s deposition testimony wherein, as

the magistrate judge recounted,

Berry testified that during her interview, Fairley told

her that the interviewing panel had selected her and

that he then congratulated her. Karl then asked her:

“So, presumably, he was telling you at that time you

got the promotion.” Berry responded yes.

Lucas, 408 F. Supp. 2d at 21 (internal citations omitted). Again,

the judge did not dispute that Berry so testified, but imposed

sanctions because the assertion of preselection did not take

account of Berry’s testimony on redirect examination that

“Fairley told her she was the first choice of the interviewing

panel but did not tell her she had received the position,” and of

the government’s position that selection by the panel was not the

same thing as selection by Fairley. Id.; see Berry Dep. 77-80

(Oct. 1, 2002).

The magistrate judge also criticized Karl for asserting that

“Dr. Fairley refused to respond to the interrogatories from [an]

EEO investigator and refused to turn over the notes during the

first stages of the administrative process.” Lucas, 408 F. Supp.

2d at 17 (quoting Pl.’s Opp’n to Def.’s Mot. for Summ. J. at 26).

Again, there is no doubt that Karl had support for this assertion.

The EEO investigation report itself stated: “Mr. Fairley refused

to provide the successful candidate’s and the other candidates[’]

responses to the interview questions.” Investigation Report at

15

4. A memo attached to the report further stated that Dr. Fairley

“failed to provide responses to the Interrogatories” after being

“asked to respond to the Interrogatories on the record.”

Memorandum from Gertrude Brittingham-Bowman (EEO

Investigator). Nonetheless, the magistrate judge thought it a

“half-truth to tell the reader that Fairley refused to turn over the

notes but then not tell the reader why and then how the notes

were turned over.” Lucas, 408 F. Supp. 2d at 18. Karl violated

Rule 11, the judge said, by failing to include Fairley’s

explanation -- that he had turned over some notes and did not

turn over others because his counsel told him not to. Id. at 17.

There is nothing in the text of Rule 11(b)(3) to suggest that

any of these statements violated that rule. In each case, the

“factual contentions” in Karl’s pleadings had “evidentiary

support,” and that is all the rule requires. See Navarro-Ayala v.

Hernandez-Colon, 3 F.3d 464, 467 (1st Cir. 1993) (“Rule 11

normally does not require one party to uncover and to set forth

the facts that support the other side’s position.”). This is not to

say that it may never be misleading to assert that something has

evidentiary support without advising the court of contrary facts.

But once again, context is relevant.

The pleading at issue here was an opposition to the

defendant’s motion for summary judgment. The defendant’s

motion asserted that “there is no genuine issue of material fact

precluding the entry of judgment for defendant as a matter of

law.” Def.’s Mem. in Supp. of Its Mot. for Summ. J. at 1.

Under Local Rules 7(h) and 56.1, Karl’s obligation in opposing

the defendant’s motion was to file a separate statement “setting

forth all material facts as to which it is contended there exists a

genuine issue necessary to be litigated.” To do that, Karl was

obliged to do no more than set forth facts in contravention of the

defendant’s claims. The rules do not require him to rehearse the

government’s evidence, and nothing in Rule 11 imposes that

16

added burden. Nor could the omission of that evidence have

been misleading to the reader. Many of the facts that the

magistrate judge criticized Karl for failing to disclose in his

opposition were contained in the government motion to which

he was responding.12 Cf. Stitt v. Williams, 919 F.2d 516, 528

(9th Cir. 1990) (“[Rule 11] [p]recedents regarding the filing of

a frivolous complaint are not necessarily controlling in the case

of an opposition to a summary judgment motion. . . . By the time

a summary judgment motion is made, the record is sufficient for

a court to determine frivolity on the basis of what appears before

it, including the papers and documents relied on by the moving

party. If the opposition is truly frivolous, the district judge can

readily grant judgment for the movant . . . .”).

Part of the problem may have been a misapprehension

regarding the nature of the pleading that Karl filed on behalf of

Lucas. At several points, the magistrate judge proceeded as if

it were Karl -- rather than the defendant -- who was asserting

that “there was no genuine issue of material fact.” Lucas, 408

F. Supp. 2d at 22; id. at 23 (same). But Karl’s pleadings did not

contend that there was no genuine issue as to any fact. To the

contrary, his contention was that there was a genuine dispute.

He was opposing summary judgment, not seeking it, and hence

had to show there was a factual dispute. See FED. R. CIV. P.

56(e)(2).13 To accomplish that, he filed an “Opposition to

12

See, e.g., Def.’s Mem. in Supp. of Its Mot. for Summ. J. at

25-30 (regarding plaintiff’s claim that Berry received the questions

and coaching prior to her interview); id. at 5 (regarding plaintiff’s

claim that Berry was preselected before Lucas was interviewed).

13

There was one exception, which Karl made clear. He did seek

“partial summary judgment” for plaintiff on a single point: he asked

the court to rule that Fairley’s comment -- that Lucas was an “old

timer” -- was direct evidence of age discrimination. Pl.’s Opp’n to

Def.’s Mot. for Summ. J. at 33.

17

Defendant’s Motion for Summary Judgment” and attached a

“Statement of Material Facts in Dispute and Material Facts

Omitted by Defendant.” The second sentence of the Opposition

made its purpose clear: “As we show below, the agency’s

position lacks merit because there are disputes of material fact

as to the real reason Mr. Lucas was denied the promotion at

issue.” Pl.’s Opp’n to Def.’s Mot. for Summ. J. at 1 (emphasis

added). Karl did not have to repeat the government’s factual

contentions in order to make that point or abide by the dictates

of Rule 11.14

III

We have examined each of the eleven statements at issue on

this appeal. In light of the foregoing analysis, we conclude that

none warranted the imposition of Rule 11 sanctions.

Accordingly, the sanctions order is

Vacated.

14

In a footnote, the Department agrees that Karl did not assert that

the “Material Facts in Dispute” listed in the first half of the Rule 7(h)

Statement were undisputed, but claims that he did make that assertion

about the “Material Facts Omitted by Defendant” listed in the

Statement’s second half. Appellee’s Br. 46 n.15. That is incorrect.

The pleading neither suggested that plaintiff believed those material

facts were undisputed, nor sought (rather than opposed) summary

judgment based upon them.