The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
By my Order of September 28, 2004, I demanded that plaintiff's counsel, John F. Karl, Jr. ("Karl"), show cause why he had not violated Federal Rule of Civil Procedure 11(b)(3) in making certain factual contentions in the documents he submitted on behalf of his client in opposition to Defendant's Motion for Summary Judgment ("Defs. MSJ").
Karl has retained counsel, Stephen C. Leckar, who has entered his firm's appearance as "attorneys for John F. Karl, Jr." Mr. Leckar has filed, on his client's behalf, a Response to Order to Show Cause ("Plains. Response").
In this memorandum, I will first explain why I believe that Karl's behavior must be judged by an objective standard: whether any reasonable lawyer, familiar with the record, would have made the statements he did. I will then review each of the statements I identified in my first opinion*fn1 in light of Karl's Response and indicate why I have finally concluded that they constitute violations of Rule 11. Finally, I will describe the sanctions I am imposing and indicate why I believe they are adequate and proper.
Controlling Legal Standard: An Objective Standard
In applying the pre-1983 version of Rule 11, "the courts generally followed a somewhat nebulous standard of subjective good faith." 2 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 11App.101 (3d ed. 1997). Following the 1983 amendments, however, the lawyer who signs the document now certifies that to the best of his knowledge, information, and belief formed after reasonable inquiry that, inter alia, the allegations and other factual contentions in it have evidentiary support. Fed. R. Civ. P. 11(b)(3). "This provision established an objective standard of conduct." MOORE ET AL., supra, § 11App.101. Hence, when the Rule 11 proceeding is commenced by motion filed by one of the parties, the courts have, without exception, held counsel to an objective standard of reasonableness. Bus. Guides, Inc. v. Chromatic Commc'ns Enters, Inc., 498 U.S. 533, 549 (1991); Int'l Brotherhood of Teamsters v. Ass'n of Flight Attendants, AFL-CIO, 864 F.2d 173, 176 (D.C. Cir. 1988); Westmoreland v. CBS, Inc., 770 F.2d 1168, 1177 (D.C. Cir. 1985).*fn2
At first, Karl seems to adhere to this standard in his Response to the Order to Show Cause. He asserts that: (1) a brief dependent on facts that undermine its legal claims is sanctionable; (2) sanctions may not be imposed unless an allegation is utterly lacking in factual support, meaning, of course, that they may be if the allegation is utterly lacking in factual support; and (3) sanctions are warranted if an attorney has presented an issue so meritless that no attorney would have presented it to the court. Plains. Response at 9-11. These assertions describe an objective standard, one based on an evaluation of the record that does not factor in an attorney's subjective intent. Nevertheless, Karl then demands that he not be sanctioned unless there is a showing of bad faith. Plains. Response at 2. By this, I take Karl to be arguing that even if the court finds that his behavior was objectively unreasonable and beneath the standard of what a reasonable lawyer would have done, he should still not be sanctioned because there is no showing of a malicious intent; he was, at most, merely careless. Karl's arguments meld principles that must be kept separate because, if not, they blur the fundamental distinction between the court's exercise of its inherent authority to punish misbehavior and its invocation of the sanction power granted it by Rule 11.
The court has inherent authority to punish misbehavior that occurs before it even if a statute or rule is not applicable. Chambers v. Nasco, Inc., 501 U.S. 32, 43-46 (1991).*fn3 The exercise of this power is subject to the requirement that it be based on a showing of bad faith. United States v. Wallace, 964 F.2d 1214, 1219 (D.C. Cir. 1992). See Shepherd v. American Broad. Cos., Inc., 62 F.3d 1469 (D.C. Cir. 1995). Furthermore, the sanction imposed must be carefully calibrated and be no greater than necessary to achieve the purpose that animates its exercise, such as deterring others from engaging in similar behavior. Bonds v. District of Columbia, 93 F.3d 801, 808-13 (D.C. Cir. 1996); Shepherd, 62 F.3d at 1478-80.
When, on the other hand, the court is not relying on its inherent power, but on a specific rule or statute, that rule or statute defines the circumstances that trigger its application. There is, therefore, a clear distinction between the court's inherent power to punish the bad faith affront to the court's authority and the power granted the court by Rule 11 to punish inter alia allegations in a document filed with the court in which "factual contentions lack evidentiary support." Fed. R. Civ. P. 11. Exercise of the court's inherent authority requires the conclusion that the offending party or lawyer acted in bad faith while exercise of the power granted the court by Rule 11 requires instead 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. In this case, I have never asserted any inherent authority to punish Karl independently of Rule 11 but have premised and will continue to premise my authority to punish him solely on Rule 11. Karl's resort to cases that deal with the court's inherent authority to punish misbehavior and the requirement that bad faith be established therefore have nothing to do with Rule 11, which, as I have just indicated, is based upon an objective evaluation of the lawyer's conduct.
Karl relies on the Second Circuit's decision in Pennie v. Edmonds, 323 F.3d 86 (2d Cir. 2003) for the proposition that the bad faith standard applies to Rule 11 sanctions that are imposed sua sponte. Plains. Response at 5-6.
First, Pennie is, by its own terms, expressly limited to the situation before it, i.e., the invocation of a sua sponte, Rule 11 power to punish a lawyer by having him pay large legal fees long after the litigation had ended. Pennie v. Edmonds, 323 F.3d at 91-92.
In this case, since the issue was raised sua sponte by the court, attorneys fees are not available as a sanction. Fed. R. Civ. P. 11(c)(12). See Johnson v. Waddell & Reed, Inc., 74 F.3d 147, 152 n.3 (7th Cir. 1995). Additionally, the issue of Rule 11 sanctions in this case was raised contemporaneously with the submission of the subject document and therefore the Second Circuit's concern that the sua sponte imposition of sanctions after litigation has ended would chill aggressive advocacy is either not present or not as present as it was in Pennie.
Furthermore, another Circuit has now indicated that it specifically disagrees with Pennie's conclusion that the standard by which a violation of Rule 11 is judged is a function of how it is invoked. In Young v. City of Providence, 404 F.3d 33, 39 (1st Cir. 2005), the First Circuit indicated that, contrary to Pennie, "[n]othing in the language of Rule 11(c) says that, if the court initiates the inquiry, something more than a Rule 11(b) breach of duty is required." Hence, a showing that the offending lawyer made a factual allegation without evidentiary support, in violation of Rule 11(b), sufficed even though her doing so was the product of nothing more than "culpable carelessness." Id. Noting that there was nothing in the language of Rule 11(c) that "says that, if the court initiates the inquiry, something more than a Rule 11(b) breach of duty is required" the court rejected Pennie's conclusion that the standard should be a function of who invokes Rule 11. Id. at 39. The court further noted that it was, after all, the purpose of the 1983 amendments to reject any bad faith requirement. Id. at 40.
Pennie has also drawn significant academic criticism. The most authoritative commentator in this area*fn4 has stated the following of Pennie's holding:
This holding is irreconcilable with the text and history of Rule 11. Rule 11(c)(1)(B)-the provision authorizing sua sponte sanctions-does not create a separate standard for assessing sanctionable behavior. Rather, it incorporates the standard of Rule 11(b), which is uniformly interpreted as erecting an objective standard for assessing litigation conduct.
Gregory P. Joseph, 'Sua sponte ' Sanctions, 25 NAT'L L.J. B6 (2003).*fn5
Objective and Subjective Standards and This Case
In any event, the distinction between an objective and subjective standard may be of academic interest because the law has always inferred the intent with which an act was performed from a consideration of all the circumstances surrounding its commission. For example, every jury in a criminal case is therefore instructed as to the fundamental principle that a finder of fact may infer the requisite intent from the surrounding circumstances, including the acts done, and that it may infer that a person intends the natural and probable consequences of acts he has knowingly done. D. C. Criminal Jury Instructions § 3.02 (4th ed 2002). Thus, as Joseph points out, the dispute as to whether a subjective or objective standard is appropriate is "largely semantic." Joseph, supra, note 6 at 213. He writes:
When a court is called upon to determine whether the improper purpose clause has been violated, the court can do so only by inferring the presenter's intent from his or her objective behavior.
It is therefore legitimate for me to infer the intent with which acts are done from the manner in which they were done.
After careful review of the statements at issue, I have found numerous misstatements of fact, many of which are of the same type. As I will now explain, these statements are classic examples of inferences disguised as statements of fact. In my view, the nature of these misstatements and their repetition in Karl's discussion of various topics and subjects convinces me that they are not innocent mistakes or the product of mere sloppiness.
Inferences Disguised as Facts
As I have just suggested, a classic misstatement is one in which an inference that might or might not be drawn from the facts is stated as a fact itself. To use a hoary example that trial judges are fond of, that 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.
Understandably, the courts have therefore specifically condemned a lawyer's presenting as a fact what really is only an inference. In In re: Curl, 803 F.2d 1004, 1006 (9th Cir. 1986), overruled on other grounds by Partington v. Gedan, 923 F.2d 686 (9th Cir. 1991). Judge Noonan quoted at length from the opinion of Chief Judge Vanderbilt in In re: Greenberg, 104 A.2d 46, 47-48 (1954):
He may assert any inferences from the facts of the case that seem to him arguable, but he cannot present his inferences from the facts as if they were the very facts themselves. When he is indulging, as he has every right to do, in inferences or reasoning from the facts, he must say so--there are many words in the English language fitted to express this process of inference--and to be effective he should state the facts in the record from which he is making his inferences. A fortiori, if, as here, there are no facts on which to predicate a statement or from which he may reason or argue, he makes such false statement of facts or false inferences from such non-existing facts at his peril.
In re: Curl, 803 F.2d at 1006. Accord In re: Cent. Ice Cream Co., 836 F.2d 1068, 1073 (7th Cir. 1987); Skycom Corp. v. Telstar Corp., 813 F.2d 810, 819 (7th Cir. 1987) ("A lawyer must distinguish a fact from an inference he seeks to press on the court. It is unprofessional conduct to represent inferences as facts."). See In re: Kelly, 808 F.2d 549, 551-52 (7th Cir. 1986) (lawyer should not have stated inference as fact; should have let his reader determine what could fairly be inferred from facts in lawyer's possession); In re: Gen. Plastics Corp., 184 B.R. 996, 1006 (S.D. Fla. 1995).
As I will now demonstrate, 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.
Fair Enforcement of Rule 11
In recognition of the concern that overzealous enforcement of Rule 11 will deter vigilant and creative advocacy, I must state the following. I am not condemning the nature of the legal arguments made by Karl, rather that the statements made in support of those arguments were false. It is fatuous and insulting to the bar to suggest that good lawyers will not represent their clients diligently because they are sanctioned when they misstate and misrepresent the record. Finally, it is hardly unfair to hold a lawyer to the professional standards of his peers by requiring only that he do what any lawyer would consider objectively reasonable.
Finally, in a given case, it might be appropriate to ascertain what evidentiary showing is necessary, choosing in traditional fashion between preponderance of the evidence and clear and convincing evidence. In this case, the choice is unnecessary. I am dealing with exhibits and transcripts, rather than the testimony of witnesses whose credibility I would have to assess. I can therefore say with perfect certainty, by the clearest and most convincing of evidence, that Karl has violated Rule 11 in the making of factual allegations that were false and that had no support in the evidence.
I now turn to the statements themselves. In each instance, I will once again identify the statement that I found might violate the Rule and summarize why I so concluded in my first opinion.*fn7 I will then indicate whether Karl violated Rule 11 despite his explanation and justification. As in my earlier opinion, I will place the statements at issue in italics.
The actual notes of the members of the panel that interviewed the candidates were exhibits to Defendant's Motion for Summary Judgment. Plaintiff said of these notes: "Examination of the interview notes certainly supports a finding that Ms. Berry was given the interview questions and appropriate answers in her possession prior to her interview." Plaintiff's Opposition to Defendant's Motion for Summary Judgement ("Plains. Opp. MSJ") at 7. In my earlier opinion, I indicated that I had reviewed the notes and that there was not a word in them that suggested, let alone, established to a certainty that Berry was given the interview questions before her interview. Op. at 4.
In response, Karl indicates that he did not intend to suggest that the interview notes contained direct evidence that Berry was given the questions before the interview. Plains. Response at 16. He admits that "he imprecisely stated his argument regarding the interview notes [and that he] should have made clear that these notes, taken in tandem with the foregoing facts of record, could support the ultimate conclusion following a trial that Ms. Berry was artificially 'well prepared' for the interview." Id. at 21.
But, it is one thing to say that if one looks at the notes, one would certainly see that Berry had the questions and answers beforehand and another to say that, if one saw the notes and saw how well Berry did in conjunction with all the other evidence bearing on her performance, one might draw the inference that she was so well prepared that she must have had the questions and answers in advance. The latter is a inference that is based on a speculation; that one does well on an exam or in an interview may be explained by one's competence and honest preparation. It is speculation to infer that because one did well, one must have cheated.
More to the point, Karl cannot seriously be suggesting that it is an "imprecision" to tell his reader that an examination of the notes will show to a certainty that a fact is true when he meant to tell his reader that if he looks at those notes and all the other evidence, he might be able to draw the inference that Berry did so well that she must have had the questions in advance. A conclusion drawn from the physical examination of an object cannot be equated with an inference drawn from the examination of that object and from the consideration of all the other evidence that supports the drawing of that inference. Equating 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 in the cases I have just reviewed.
B. Requirements for the Position
In my original memorandum, I pointed out that plaintiff had propounded an interrogatory that demanded to know why the requirements for the Management/Program Analyst position did not require an advanced education or a college degree. Op. at 4-5. I noted that the government's response was that the requirements for this position were derived "from the Qualification Standards for General Schedule Positions promulgated for government-wide use by the Office of Personnel Management (OPM Qualification Standards)." Id. at 5 (quoting defendant's response to Interrogatory No. 8). Hence, the government explained that since the Qualification Standards stated ...