noting that “[fjact-bound resolutions cannot be made uniform through appellate *703 review, de novo or otherwise” and that an appellate pronouncement in such a case “is unlikely to establish clear guidelines for lower courts; nor will it clarify the underlying principles of law.”
How later courts described this case
- noting that “[fjact-bound resolutions cannot be made uniform through appellate *703 review, de novo or otherwise” and that an appellate pronouncement in such a case “is unlikely to establish clear guidelines for lower courts; nor will it clarify the underlying principles of law.”
- noting that "[f]act-bound resolutions cannot be made uniform through appellate review, de novo or otherwise" and that an appellate pronouncement in such a case "is unlikely to establish clear guidelines for lower courts; nor will it clarify the underlying principles of law."
- noting that “[fjact-bound resolutions cannot be made uniform through appellate review, de novo or otherwise” and that an appellate pronouncement in such a case “is unlikely to establish clear guidelines for lower courts; nor will it clarify the underlying principles of law.”
- stating that the Rule 38 standard "depends on the work product: neither the lawyer’s state of mind nor the preparation behind the appeal matter"
Written by the judges who cited it.
The opinion
FLAUM, Circuit Judge,
with whom BAUER, Chief Judge, and HARLINGTON WOOD, Jr. and CUDAHY, Circuit Judges, join, concurring.
I believe that there are distinct benefits to be gained from a de novo review of a district court’s determination that a paper is frivolous within the meaning of Rule 11, and I further believe that such a review is a wise investment of appellate resources. However, because I conclude that regardless of the standard of review applied, the district court was correct to impose sanctions based on the conduct of the appellants, I concur in the judgment of the court.
In my view, the most compelling reason for advancing de novo review over the more deferential abuse of discretion review is the enhanced opportunity the former affords an appellate tribunal to address the issue of uniformity in the imposition of Rule 11 sanctions. As the majority acknowledges, the disuniformity among district courts with regard to imposing sanctions under Rule 11 has been of great concern to commentators, see, e.g., Vairo, Rule 11: A Critical Analysis, 118 F.R.D. 189 (1988); Schwartzer, Rule 11 Revisited, 101 Harv.L.Rev. 1013 (1988), the courts, and the bar in general.
Unlike the majority, however, I do not accept that de novo review would have little or no effect on the level of uniformity among district court decisions. I do not question that there will be some cases where the factual or legal scenario will be so unique that little of precedential value can be derived from de novo review. Nevertheless, I believe that there are a significant number of cases where de novo review would result in meaningful guidance to the district courts, creating a deci-sional environment in which uniformity could flourish. While those cases might not necessarily be factually or legally identical, the nature of the conduct that received Rule 11 attention would be sufficiently similar to make de novo review worth the more searching effort.
Further, I do not accept the proposition that de novo review would simply add to the unevenness of Rule 11 analysis. Appellate courts have the unique advantage of panel assessment in deciding cases. This judicial structure, in which the deci-sional process benefits from varied legal backgrounds and a circuit-wide vantage point, can assist in developing a reflective and instructive body of law in Rule 11 determinations.
The value of de novo review may be most evident where the decision to impose sanctions is based on an objective standard of decisionmaking. As noted by the majority, we use an objective standard to determine whether a paper was factually or legally frivolous. Thus, I would review such a determination de novo and would reserve deferential review for questions of whether a paper was filed for an improper purpose, where the inquiry contains a subjective component.
It can be argued that the difference between the abuse of discretion standard favored by the majority and the de novo standard I have suggested is, in most instances, more imagined than real. In effect, no single abuse of discretion standard exists, Childress, Standards of Review § 4.1 (1986), nor is there a single de novo standard. Case law teaches that the abuse of discretion standard can range from minimal review to fairly intensive review while the de novo standard can vary from relatively deferential review to comprehensive review. The de novo review I envision, while giving appropriate weight to the district courts’ assessments, would permit thorough examination of those district court decisions that appear to be at the margins of Rule 11. With this concept in mind, the name given to the standard of review may be more symbolic than outcome determinative. However, given the wide-ranging implications that Rule 11 sanctions have had in the post-1983 era for the practice of law in this circuit, I believe de novo review is the medium and the message *941 which would most accurately reflect our commitment to establishing the goals of Rule 11 enforcement in the most evenhanded manner that appellate review can ensure.