PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: MARGARET M. BEES, in her
individual capacity,
Appellant.
COLUMBIA VENTURE LLC,
Plaintiff-Appellee,
and
HEATHWOOD HALL EPISCOPAL
SCHOOL,
Intervenor/Plaintiff, No. 06-1071
v.
FEDERAL EMERGENCY MANAGEMENT
AGENCY,
Defendant,
DR. JOHN GREGO; DR. DANIEL
TUFFORD; RIVERLAND PARK
NEIGHBORHOOD ASSOCIATION; SOUTH
CAROLINA WILDLIFE FEDERATION,
Intervenors/Defendants.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Margaret B. Seymour, District Judge.
(3:01-cv-04100-MBS)
Argued: January 28, 2009
Decided: April 3, 2009
2 IN RE BEES
Before WILLIAMS, Chief Judge, and MOTZ and SHEDD,
Circuit Judges.
Reversed by published per curiam opinion.
COUNSEL
ARGUED: Mark Earl Nagle, TROUTMAN & SANDERS,
L.L.P., Washington, D.C., for Appellant. Manton McCutchen
Grier, HAYNSWORTH, SINKLER & BOYD, P.A., Colum-
bia, South Carolina, for Appellee. ON BRIEF: William C.
Boyd, Sarah Michaels Montgomery, HAYNSWORTH,
SINKLER & BOYD, P.A., Columbia, South Carolina, for
Appellee.
OPINION
PER CURIAM:
Margaret M. Bees, an attorney for the Federal Emergency
Management Agency ("FEMA"), appeals the district court’s
sua sponte imposition of Rule 11 sanctions. We reverse.
I.
In 1998, pursuant to the National Flood Insurance Act, 42
U.S.C. §§ 4001-4129 (2006), FEMA began to redraw the
flood maps for the portion of the Congaree River located in
Richland County, South Carolina. After FEMA issued its final
determination, Columbia Venture, which owns a large parcel
of land in the affected area, brought suit, arguing that
FEMA’s determination was scientifically unsound. During the
course of contentious litigation, Columbia Venture sought to
IN RE BEES 3
vacate FEMA’s determination on the basis that the Federal
Register notice—published on February 16, 2001—was not
timely.
After the parties briefed Columbia Venture’s motion to
vacate, the district court issued a sua sponte order directing
FEMA and its "counsel of record" to show cause as to why
Rule 11 had not been violated. In its order, the court sought
explanation for two documents filed by FEMA that errone-
ously stated or suggested that FEMA had timely published a
Federal Register notice, when it had not. The court held a
hearing on both Columbia Venture’s motion to vacate and the
court’s show cause order. During that hearing, Margaret Bees,
an attorney representing FEMA, made several statements
regarding a comment period assertedly triggered by the Fed-
eral Register publication.
Following the hearing, the district court issued two orders.
First, it granted Columbia Venture’s motion to vacate; we
address that order in a companion case, in which we more
fully set forth the background facts. Columbia Venture LLC
v. S.C. Wildlife Fed’n, No. 05-2398, ___ F.3d ___ (4th Cir.
2009). Second, the court imposed substantial Rule 11 sanc-
tions on Bees, which we address within.
Specifically, after finding that FEMA misrepresented the
Federal Register publication date in its written submissions
and that Bees made erroneous statements as to the comment
period at the October 31 hearing, the district court (1) directed
the clerk to withdraw Bees’s appearance in the case, (2)
instructed Bees to affix a copy of the sanction order to all
future submissions filed in the United States District Court for
the District of South Carolina, (3) stated that any future appli-
cations made by Bees before that particular judge would be
summarily denied, (4) ordered Bees to complete continuing
legal education courses in ethics, a remedial step that Bees
had voluntarily undertaken, and (5) directed Bees to provide
a copy of the sanctions order and a transcript of the October
4 IN RE BEES
31, 2005 motion hearing to the disciplinary board for her state
bar.1
Bees timely appealed.
II.
Rule 11 requires an attorney who has "present[ed] to the
court a pleading, written motion, or other paper—whether by
signing, filing, submitting, or later advocating it" to certify "to
the best of the person’s knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances"
that, inter alia, "the factual contentions have evidentiary sup-
port." Fed. R. Civ. P. 11(b). "[A]fter notice and a reasonable
opportunity to respond," a court "may impose an appropriate
sanction on any attorney, law firm, or party" that violated
Rule 11. Fed. R. Civ. P. 11(c)(1).
We review a district court’s imposition of Rule 11 sanc-
tions for abuse of discretion. Hunter v. Earthgrains Co. Bak-
ery, 281 F.3d 144, 150 (4th Cir. 2002). By definition, an error
of law constitutes an abuse of discretion. Id.
Because a sua sponte order to show cause does not provide
an attorney with Rule 11’s twenty-one day safe harbor provi-
sion, see Fed. R. Civ. P. 11(c)(2), "a court is obliged to use
extra care in imposing [sua sponte] sanctions on offending
lawyers." Hunter, 281 F.3d at 151. Courts generally should
1
Additionally, the district court instructed FEMA and the United States
Attorney’s Office for the District of South Carolina to circulate the sanc-
tions order to all attorneys within their respective offices and to address
the matter in continuing education efforts. Because FEMA and the United
States Attorney’s office have not appealed this sanction, we do not con-
sider it here. Nonetheless, it appears that the district court sanctioned Bees
individually, in part, based on documents submitted to the court by a num-
ber of attorneys representing FEMA. The record does not reveal why Bees
bore the brunt of the sanctions.
IN RE BEES 5
reserve such sanctions for "situations that are akin to a con-
tempt of court." Id. (citation omitted).
With these principles in mind, we consider the two grounds
on which the district court levied sanctions against Bees: (1)
written submissions regarding the date of the Federal Register
notice filed by Bees (and other lawyers) on behalf of FEMA,
and (2) Bees’s oral statements regarding a comment period
following that notice.
III.
The district court initially sanctioned Bees for filing two
documents that erroneously suggested that FEMA published
a notice in the Federal Register in September 1999.
On December 31, 2002, Bees and other FEMA attorneys
filed the first of these documents: a declaration signed by
FEMA engineer Douglas A. Bellomo (the "Bellomo Declara-
tion") supporting FEMA’s motion to dismiss.2 This declara-
tion states:
On September 7, 1999 and September 14, 1999,
FEMA gave public notification in The State—a
prominent newspaper in Richland County and in the
Federal Register of its proposed 1% annual chance
of flood elevations for the Richland County area
reflected in the August 12, 1999 maps. FEMA also
gave notice of proposed 1% annual chance base
flood elevations in the Federal Register. FEMA
allowed a period of 90 days from the date of the sec-
ond publication in The State for any owner or lessee
of real property within the community who believed
his property rights to be adversely affected by the
2
Although Bees did not sign the declaration, counsel’s Rule 11 obliga-
tions also extend to any "paper" counsel "fil[es]" with or "submit[s]" to the
court. Fed. R. Civ. P. 11(b).
6 IN RE BEES
Director’s proposed determination to appeal such
determination.
The district court found that this statement "leads the reader
to believe that notice was published in the Federal Register
on or about September 7, 1999, because it is included in the
paragraph that discusses events that occurred on September 7,
1999."
We agree that the language of the declaration is misleading.
But during the district court hearing, Bees explained that an
inadvertent typographical error caused this difficulty. She
noted that two consecutive sentences in the affidavit discussed
the Federal Register notice. The district court accepted this
explanation of "clerical error." Given that the district court
itself quite reasonably concluded that the declaration con-
tained a clerical mistake rather than a deliberate attempt to
mislead, the declaration presents no basis for sanctions.
Nevertheless, the court found that FEMA’s September 9,
2005 brief in opposition to Columbia Venture’s motion to
vacate did provide a basis for Rule 11 sanctions because of a
similar inaccuracy. Citing the Bellomo Declaration, FEMA’s
brief stated:
On September 7 and 14, 1999, FEMA gave public
notification in The State—a prominent newspaper in
Richland County—of its proposed 1% annual chance
flood elevations for the Richland County area
reflected in the August 12, 1999, maps. FEMA also
gave notice of proposed 1% annual chance base
flood elevations in the Federal Register.
Unlike the Bellomo Declaration, this factual assertion does
not refer to the Federal Register publication in the same sen-
tence as The State publication. But the brief discusses the two
statements in adjacent sentences and provides no date for the
IN RE BEES 7
Federal Register publication. Accordingly, we appreciate the
district court’s concern that this passage is misleading.
However, just a few pages later in the same FEMA brief,
the agency clearly "concede[d]" that the Federal Register
notice was "published in the Federal Register on February 16,
2001," i.e., not on the same dates as The State publication—
September 7 and 14, 1999. (Emphasis added). Indeed, FEMA
had notified Columbia Venture of this fact by letter a month
earlier, and Columbia Venture filed the February 16 notice as
an attachment to its August 22, 2005 motion to vacate. Thus,
we can only conclude that FEMA’s error in one portion of its
September 9, 2005 brief was an inadvertent mistake, not a
deliberate attempt to mislead or a failure to conduct a reason-
able inquiry. Such an isolated, inadvertent error does not jus-
tify Rule 11 sanctions. See Milwaukee Concrete Studios, Ltd.
v. Fjeld Mfg. Co., 8 F.3d 441, 449-51 (7th Cir. 1993); see also
Forrest Creek Assocs., Ltd. v. McLean Sav. & Loan Ass’n,
831 F.2d 1238, 1245 (4th Cir. 1987) ("[Rule 11] does not
extend to isolated factual errors, committed in good faith
. . ."). Imposition of sanctions on this basis constitutes an
abuse of discretion.
IV.
The only other basis offered by the district court to justify
its sanctions is an asserted "misrepresentation" Bees made
during the October 31, 2005 hearing itself. Bees contends that
the district court erred as a matter of law in sanctioning her
on the basis of this oral statement. We agree.
During the October 31, 2005 hearing, the parties disputed
the effect of the Federal Register notice published on Febru-
ary 16, 2001. Columbia Venture contended that FEMA’s
comment period closed before FEMA published the Federal
Register notice. In response, Bees initially argued that the
February 16 publication created a new comment period lasting
30 days from the date of publication of the Federal Register
8 IN RE BEES
notice.3 But upon questioning by the court, Bees admitted that
this statement was at odds with the plain language of the Feb-
ruary 16, 2001 notice, which states that the comment period
closed 90 days after the second publication in the local news-
paper. Following the argument, the district court determined
that the plain language of the February 16 notice accorded
with all similar FEMA filings and contained a correct state-
ment of the law. Thus, the court concluded that Bees "had
actual notice that her [oral] representation to the court [about
the comment period] was false" and sanctioned Bees for that
oral representation.
Rule 11, however, severely limits a court’s ability to sanc-
tion counsel for oral statements. It permits a court to impose
sanctions only on the basis of a false, misleading, or otherwise
improper "pleading, written motion, or other paper." Fed. R.
Civ. P. 11(b). Thus, as the Advisory Committee has
explained, Rule 11 "applies only to assertions contained in
papers filed with or submitted to the court." Fed. R. Civ. P.
11 advisory committee’s note (1993 Amendments, Subdivi-
sions (b) and (c)). The rule "does not cover matters arising for
the first time during oral presentations to the court, when
counsel may make statements that would not have been made
if there had been more time for study and reflection." Id. In
sum, an oral statement may form a basis for Rule 11 sanctions
only if it advocates a contention previously contained within
a written submission. See Christian v. Mattel, Inc., 286 F.3d
3
As Bees explained to the district court in a post-argument letter, she
based her representation that the February 16, 2001 publication created a
new 30-day comment period on the notion that "the Administrative Proce-
dures Act (APA) required [Federal Register] notices to allow for a com-
ment period of thirty days." Although apparently erroneous, this argument
certainly constitutes a plausible interpretation of the APA. The statute gen-
erally requires an agency to provide a comment period after "proposed
rule making" is "published in the Federal Register." 5 U.S.C. § 553(b) &
(c) (2006). To be sanctionable, a "legal argument must have absolutely no
chance of success under the existing precedent." Hunter, 281 F.3d at 153
(quotation omitted).
IN RE BEES 9
1118, 1129-31 (9th Cir. 2002); O’Brien v. Alexander, 101
F.3d 1479, 1488-90 (2d Cir. 1996).
In sanctioning Bees the district court did not find that
Bees’s oral statements advocated an argument previously con-
tained in a written submission. Nor could the court have so
found, for no previous written submission contains an errone-
ous or misleading statement regarding the comment period.
Moreover, Rule 11 requires a district court to order counsel
"to show cause why conduct specifically described in the
order has not violated Rule 11(b)" prior to imposing sua
sponte sanctions in order to allow counsel to respond to spe-
cific asserted Rule 11 violations. Fed. R. Civ. P. 11(c)(3); see
also Hunter, 281 F.3d at 157 ("[A] court, especially when act-
ing sua sponte, must particularize the behavior it deems sanc-
tionable." (citing Fed. R. Civ. P. 11(c))). Here, the district
court never ordered Bees to show cause with respect to the
comment period issue. Accordingly, the district court commit-
ted legal error and so abused its discretion in sanctioning Bees
on the basis of the comment period statement.
V.
For these reasons, we reverse the order of the district court
imposing Rule 11 sanctions on Margaret M. Bees.
REVERSED